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September 22, 2017

Graham-Cassidy fails 'Kimmel test,' says Kimmel. Graham says that's 'garbage.' Who's right?

Daily Briefing

Editor's note: This story has been updated.

Sens. Bill Cassidy (R-La.) and Lindsay Graham (R-S.C.) have said their health care bill would ensure access to affordable coverage for people with pre-existing conditions. But just days before a planned Senate vote on the measure to repeal and replace the ACA and overhaul Medicaid, the bill's sponsors are engaged in a public debate with late-night TV host Jimmy Kimmel, who said Cassidy "lied to my face" about the issue.

The legislation's prospects in the Senate remain unclear, as two GOP senators—Sen. Rand Paul (R-Ky.) and Sen. John McCain (R-Ariz.)—have announced their opposition to the bill. GOP leaders would be unable to pass the legislation if any more Republicans turn against it, and several additional Republican senators have expressed reservations, including Sen. Susan Collins (Maine), who Friday said she was "leaning against" voting for the bill.

'The Jimmy Kimmel test'

Kimmel in May revealed on his show, "Jimmy Kimmel Live!", that his newborn son Billy had been diagnosed with a hole in his heart and a blocked pulmonary artery. Kimmel said that diagnosis made his son one of the millions of U.S. residents who have a pre-existing medical condition, which he argued could make his son vulnerable to unaffordable insurance premiums under the House-approved American Health Care Act.

Shortly after, Cassidy, a physician, appeared on Kimmel's show and proposed what he called "the Jimmy Kimmel test" for health reform legislation: "Would a child born with a congenital heart disease get everything she or he would need in the first year of life?"

But in a monologue Tuesday, Kimmel said Cassidy's own proposal, which is headed for a Senate vote next week, fails that test. "This guy, Bill Cassidy, he just lied right to my face," Kimmel said, asserting that "with this [bill], your child with a preexisting condition will get the care he needs, if and only if his father is Jimmy Kimmel."

But Cassidy is firing back: In a Wednesday morning appearance on CNN's "New Day," he said, "I am sorry [Kimmel] does not understand."

Sen. Lindsey Graham (R-S.C.), the bill's other main sponsor, also defended the bill, calling Kimmel's arguments "garbage." He said, "Here's what I'd say to Mr. Kimmel: I understand the emotional nature of having a sick child, and we're all grateful your child is doing well," adding, "I bet you he never called Sen. Cassidy and said 'would you please set this straight?'"

Kimmel doubled down on Wednesday, saying that under Graham-Cassidy, "states would be allowed to let insurance companies price you out of coverage for having preexisting conditions." He said that Cassidy either doesn't understand his own bill or he lied to me" and listed the various medical associations that have come out against the bill.

So who's right?

The Cassidy-Kimmel debate focuses on a key provision of the ACA, which has barred insurers from denying coverage or charging more for insurance based on an individual's pre-existing conditions.

Under Graham-Cassidy, states could obtain waivers from HHS to allow insurers to charge individuals higher premiums if they have pre-existing conditions. In order to obtain those waivers, states would be required to document how they "inten[d] to maintain access to adequate and affordable health insurance coverage for individuals with pre-existing conditions."

Graham and Cassidy have argued that their bill's guarantee of "adequate and affordable coverage" would ensure that no one goes without needed coverage. But several experts noted that the bill does not define what "adequate and affordable" care means.

According to The Hill, that means the HHS secretary would judge on a case-by-case basis what counts as "adequate and affordable" care. However, others believe that the bill would allow states even further leeway.

Matt Fielder, a Brookings Institution health care policy fellow, told ABC News that under Graham-Cassidy, "the federal government does not appear to have any authority to reject waivers," so long as states provide some information on adequate and affordable care. He added, "Even if there were some ability for the federal government to meaningfully enforce this requirement ... the term 'adequate and affordable' is quite vague and elastic. That would make denying an application on these grounds hard."

Additionally, the bill would permit states to apply for waivers from the ACA's essential health benefits (EHBs), which require health plans to cover at least 10 types of services, including emergency services, hospitalization, maternity and newborn care, and prescription drugs. The Commonwealth Fund has argued that, in states that waived the law's EHB requirements, many insurance plans would choose not to cover some treatments required by people with pre-existing conditions. Eliminating EHB requirements would also affect the ACA provision prohibiting insurers from placing lifetime or annual caps on coverage for EHBs.

Meanwhile, the Blue Cross Blue Shield Association on Wednesday in a statement said that Graham-Cassidy "contains provisions that would allow states to waive key consumer protections, as well as undermine safeguards for those with pre-existing medical conditions."

Would states actually waive pre-existing condition protections? Maybe not, experts say.

Since it would be up to each state to determine whether or not they will waive all or some the ACA insurance regulations, an individual's access to affordable coverage could be determined by the state they reside in, the Washington Post's "The Fix" reports.

However, some conservative industry experts, such as James Capretta of the American Enterprise Institute, said few states may request to waive rules affecting individuals with pre-existing conditions because they are popular among U.S. residents. "States are allowed to come forward with waiver requests, and waivers can be granted, but the politics are not easy on a state level," he said.

Robert Laszewski, an insurance industry consultant and blogger, similarly said state lawmakers and governors would likely face pushback from consumers and medical groups (Rogin et al., ABC News, 9/21; Kliff, Vox, 9/18; Diamond, Politico, 9/20; Rogers, New York Times, 9/20; Phillips, "The Fix," Washington Post, 9/20; Sullivan, The Hill, 9/20; Nelson, Politico¸9/20; Lima, Politico, 9/21; Greenberg, PolitiFact, 9/20; Jost, Health Affairs Blog, 9/13; Franke, Vox, 9/21; Franke, Vox, 9/22; Scott, Vox, 9/19; Framke, Vox, 9/21; Carney, The Hill, 9/22; Kaplan, New York Times, 9/22; AP/Washington Post, 9/22). 

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