The subject for this blog was suggested by Dr. Sumeet Mitter, my excellent cardiologist.  This blog is dedicated to him and all the incredible medical staff at Mt. Sinai Hospital.  Having just had a heart transplant, it was a subject that I could warm to.

          A pre-existing medical condition is generally defined as “a medical condition that occurred before a program of health benefits went into effect.”  According to the Kaiser Foundation, more than a quarter of adults below 65 (approximately) had pre-existing conditions in 2016.

          Under current law, health insurance companies can’t refuse to cover you or charge you more just because you have a “pre-existing condition.”  These rules went into effect for plan years beginning on or after January 1, 2014.

          Donald Trump pledged to support pre-existing conditions coverage.  Candidate Trump announced at a rally in Las Vegas, “when it comes to health insurance, Donald Trump and Republicans will protect patients with pre-existing conditions.”  After election the Justice Department told a Federal Court that it would no longer defend provisions in the Affordable Care Act that protects patients with pre-existing conditions.

          Surprised?  This is typical of the most mendacious President to ever occupy the White House.  The law suit, Texas v United States, had an unusual response from the Trump administration.  Usually, a presidential administration defends current law.  It agreed with the conservative state that the mandate should be found unconstitutional.

          Judge Reed O’Connor said that “the individual mandate is unconstitutional” and the remaining provisions of the Affordable Care Act are invalid.  Legal experts across the political spectrum agree that the reasoning underpinning O’Connor’s decisions is weak.

          It is expected that the decision will be overturned by the Fifth Circuit.  There is no reasonable basis on which the Courts should overturn the entire ACA because of the arguments made in the case.  Eventually, the case will wind up in the Supreme Court.  ACA is still the law until further action by Appellate Courts or the Legislature.  The decision was deemed a “Declatory Decision.”

          So, is the right to medical treatment for a pre-existing medical condition a protected property right?

          I think it is.  The key case is Goldberg v Kelly, 397 U.S. 254 (1970).  In Goldberg, the Supreme Court of the United States ruled that the due process clause of the Fourteenth Amendment to the United States Constitution requires an evidentiary hearing before a recipient of certain government welfare benefits can be deprived of such benefits.  Welfare benefits are a Matter of Statutory entitlement to receive them and so procedural due process is applicable to their termination.  Protection for pre-existing medical conditions granted by ACA is certainly a protected property right which cannot be withdrawn.

          The Goldberg Court decided that such entitlement (like Welfare payments, government pensions, professional licenses) are a form of “new property” that require pre-deprivation procedural protection and so did away with the traditional distinction between rights and privileges. 

          We have the same reasoning applicable here.  It is “a Matter of Statutory entitlement for persons qualified to receive them.”  (Justice Brennen).

          Thus, there is firm precedent to hold that pre-existing medical conditions granted by ACA are property rights and protected.

Posted in Goldberg v Kelly, Pre-Existing Medical Condition, Property Rights, Texas v United States
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