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The neonatal intensive care unit at Sunrise Hospital as seen on Wednesday, Jan. 31, 2018. (Daniel Clark/The Nevada Independent)

Deciding whether to protect or dismantle the Affordable Care Act is increasingly being left up to individual states as Congress appears unlikely to take action on the health-care law in the near future and the federal government has refused to defend it in court, meaning that Nevada’s next governor is likely to play a critical role in shaping the future of health-care policy.

Republicans who have long opposed the Affordable Care Act — including some who actually voted against it or backed repealing it — have suddenly advocated for the law’s protections for pre-existing conditions this election cycle. The protections are widely regarded as the most popular provisions of the otherwise divisive federal health-care law, with 75 percent of Americans saying it is “very important” to them that the protections remain in place so insurers can’t deny coverage, according to a recent poll from the Kaiser Family Foundation.

Republican Attorney General Adam Laxalt — a fierce critic of the federal health-care law who called it “the most flawed piece of major legislation America has ever endured”— now promises to keep the law’s pre-existing condition protections in place, outlining general promises in his health care policy platform and launching an ad featuring his mother, Michelle, doubling down on the position.

His opponent, Democratic Clark County Commissioner Steve Sisolak, has nonetheless hammered Laxalt on the issue and released an ad suggesting the Republican attorney general would “let insurance companies deny people coverage, just because they have a pre-existing condition.” In an interview Tuesday, Sisolak said his campaign was continuing to run ads focusing on pre-existing conditions because he didn’t believe Laxalt was sincere in his promise to protect that aspect of the law.

“We have been consistent with where we stand in terms of the expansion of Medicaid and pre-existing conditions,” he said. “Adam has kind of blown with the wind depending what the political pundits and polls say. That’s where he’s going, wherever he thinks he can capture votes.”

Sisolak also promised to sign a bill vetoed by Gov. Brian Sandoval in 2017 that would align state law with several provisions of the Affordable Care Act, including those protecting people with pre-existing conditions. Laxalt’s campaign didn’t respond to a request for comment on the same issue, but a spokeswoman for the attorney general said he declined to enjoin the state in a lawsuit challenging the health-care law’s constitutionality on the grounds that that it wouldn’t serve the “best interests” of the state.

Nonetheless, Republicans in major races have continued to campaign on keeping protections for people with pre-existing conditions in place. But they’ve been less keen to get directly involved in an ongoing legal challenge that could jeopardize the entire federal health-care law and have been reluctant to share specific details of how they would keep such protections in place if the law is overturned.

Three provisions of the Affordable Care Act  — guaranteed issue, adjusted community rating and pre-existing conditions exclusions — are responsible for ensuring that people are able to access health insurance coverage regardless of any pre-existing conditions. In short, the three provisions prevent insurers from denying someone coverage because they have a pre-existing condition, charging them a higher premium because of a pre-existing condition or denying coverage for services needed to treat a pre-existing condition, respectively.

Eighteen states have folded anywhere from one to all of those provisions into state law — four states have adopted all three — giving patients some assurance that pre-existing condition protections will remain in place regardless what happens to the federal law, according to a Commonwealth Fund analysis. The same analysis determined that Nevada has only codified one of those provisions — adjusted community rating — meaning that if anything happens to the federal health-care law, the other two protections from being denied coverage or services because of a pre-existing condition will go away.

The bill that was passed but vetoed during the last legislative session would have codified all three protections into law. In his veto message, Sandoval said that while the measure would have prohibited insurance companies from denying people because of their health status — a goal he noted he shares — he believed the law went “too far” and “locks into state law requirements that may be unnecessary, imprudent, or simply unaffordable in the years to come, tying the hands of future lawmakers, and hindering future endeavors to craft healthcare policy in real time, subject to immediate circumstances, needs, and available resources.”

Now, a recent federal lawsuit, announced by Texas and attorneys general in 19 other states in April, has placed all three popular provisions in jeopardy. The lawsuit is arguing that the entire ACA should be struck down by claiming that zeroing out the tax penalty associated with the law’s individual mandate — which requires people to purchase health insurance — as part of the 2017 overhaul of the federal tax code rendered the law unconstitutional, citing an earlier Supreme Court case that held the tax penalty was an “essential part” of the law.

In June, the Trump administration announced it would not defend the Affordable Care Act in the case, agreeing with the states that brought the suit that the individual mandate is now unconstitutional as are the three provisions meant to protect people with pre-existing conditions, though it did not say that the entire federal health-care law should be struck down. The administration has remained on the sidelines of the case even as President Donald Trump proclaimed that Republicans were fighting to keep protections for people with pre-existing conditions in place.

California Attorney General Xavier Becerra and 16 other Democratic attorneys general filed a motion opposing the lawsuit and were allowed to intervene in the case, essentially taking the place of the federal government in defending the law. Initial oral arguments in the case were heard in September, though a decision in the case is unlikely to come out before the November midterm election.

But Laxalt — who has rarely shied away from challenging the federal government and signing the state on to lawsuits challenging federal policies on immigration, water rights and overtime calculations —  has not brought Nevada onto either side of the lawsuit, leaving the state as one of 15 sitting on the sidelines of the legal battle.

In an email, a spokeswoman for the attorney general’s office said getting involved with the lawsuit would not further Laxalt’s goals of opposing the health-care law while supporting people with pre-existing conditions.

“The attorney general has made very public his opposition to Obamacare as well as his support for individuals with pre-existing conditions,” spokeswoman Monica Moazez said in an email. “With the best interests of Nevada in mind, our office did not get involved in the recent Obamacare lawsuit because it remains unclear that this suit would further either goal for Nevadans. Though litigation can sometimes help shape important policy, this litigation is not going to fix our most challenging healthcare issues. Congress needs to act.”

Representatives from the Texas and California attorney general’s offices did not return requests for comment as to whether they had asked Nevada to intervene in the suit.

Laxalt’s campaign did not answer emailed questions about what he would specifically do to enshrine protections for people with pre-existing conditions or whether he would sign into law the measure vetoed by Sandoval in 2017 that would codify parts of the Affordable Care Act into Nevada law.

Sisolak’s campaign said in an email that he would sign the vetoed measure into law or any other law that backed up those federal protections for pre-existing conditions into state law.

“I will consider signing any piece of legislation that protects Nevadans with pre-existing conditions from discrimination by insurance companies — whether that discrimination is a flat-out refusal to provide coverage or inflated rates for those individuals,” he said in an emailed statement. “Adam Laxalt and his allies can try to argue that they would protect Nevadans, but the fact is Republicans have fought tirelessly for a decade to rip away these very protections.”

Democratic Assemblyman Mike Sprinkle, who chaired the Assembly Health and Human Services Committee in 2017, said it was likely measures codifying the Affordable Care Act in its entirety or with specific parts cherry-picked, such as pre-existing condition protections, that would be brought forward in the next legislative session.

“It’s a high priority,” he said of pre-existing condition protections. “It’s an incredibly high priority for me. It think that there are very few other things that currently are in the Affordable Care Act that need to be defended more than that.”

But Sprinkle acknowledged that any changes in health-care policy will heavily depend on the state’s next governor. He said that while he hoped to work with Laxalt if the Republican is elected, his past opposition to the health-care law gave him some pause as to potential policy areas that they could both support.

“Anybody that doesn’t adhere to the same sort of platform or ideology that I do, especially when it comes to health care, it makes me curious as to how we will forward building a relationship in regards to getting good legislation passed,” he said.

Similar debates have played out on the federal level, where several Republican U.S. senators including Nevada’s Dean Heller, who is facing a tough re-election bid this year, introduced a bill in August that would reinstate the Affordable Care Act’s protections for pre-existing conditions in the event that the they are ruled unconstitutional in the Texas case. But health-care policy experts have cautioned that the legislation wouldn’t actually prevent insurers from being able to exclude coverage of a pre-existing condition, and it’s not even clear if the bill has a path forward.

Down the ticket, Republican congressional candidates have sought to highlight their support for pre-existing conditions despite past votes to dismantle the health-care law. Vice President Mike Pence told a crowd of around 500 people over the weekend that Republican congressional hopeful Cresent Hardy would “always” keep protections in place for people with pre-existing conditions.

The former congressman said earlier this year that the protections are “probably the one thing I really like” out of the federal health-care law but voted at least three times to overturn the entire law during his two years in Congress.

Beyond protections for pre-existing conditions, Nevada’s next governor will also have to decide whether to take steps to bolster the individual market — through something like a state-run reinsurance program — or whether to whittle away at the Affordable Care Act as the Trump administration has done. For instance, the administration released guidance last week that would allow states to use federal funding to subsidize short-term health insurance policies, which are allowed to exclude people with certain health conditions or charge them higher premiums and aren’t required to cover mental health, prescription drugs or maternity care.

In order to direct federal dollars toward these skimpier plans, states would have to apply to the federal government to skirt Affordable Care Act provisions through what is known as a Section 1332 waiver. Whether to apply for a waiver is up to the governor and his administration.

Heather Korbulic, the head of Nevada’s health insurance exchange, said that she thinks the country will likely “start seeing a real state-by-state health care system.” And if the judge rules in Texas’s favor and strikes down the entire Affordable Care Act, Korbulic said it could have a “dramatic and potentially devastating impact not just on the individual market” but on Medicaid, Medicare and employer-sponsored plans as well.

“There are opportunities for the state to lead in consumer protection,” Korbulic said. “Part of that, in my opinion, is really maintaining the integrity of the individual market and essentially the essential health benefits coverage. I think that consumers need access to comprehensive coverage and you don’t want to take risks on what something is going to cover you for.”

Michelle Rindels contributed to this report. 

Disclosure: Steve Sisolak has donated to The Nevada Independent. You can see a full list of donors here.

Updated at 10-31-18 at 5:17 p.m. to include an additional portion of a quote from Gov. Brian Sandoval’s veto message.

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