The passage of the American Health Care Act in the U.S. House of Representatives last Thursday is poised to impact the lives of thousands of retired professional athletes, particularly those who are likely to develop serious health problems as they age. If the AHCA—or more plausibly, a moderated version of the AHCA—becomes law, health care for persons with so-called “pre-existing conditions” could become more expensive. In some states, a law that resembles the AHCA would allow health care companies to charge higher prices for persons whose health records reveal certain types of pre-existing conditions. Under the AHCA, those conditions include serious neurological diseases that have been linked to playing football and other contact sports as well as prior knee surgeries and other ailments that sometimes arise after orthopedic procedures.
The prospect of paying more for health insurance due to pre-existing conditions is a concern for millions of Americans. Among them are retired NFL players. As NFLPA executive director DeMaurice Smith expressed on CBS’s Face The Nation in February, there is a “100% injury rate in the NFL” and “every” retiring NFL player leaves the game with a pre-existing condition.
AHCA and its prospects for becoming law
The House narrowly passed the AHCA by a 217–213 vote, with not one Democrat voting in its favor. The vote highlights the divisive nature of the bill and the broader controversy over health care reform.
President Donald Trump has advocated for a repeal and replacement of the Patient Protection and Affordable Care Act of 2010, the health care law promoted by then-President Barack Obama, often called Obamacare. Among many other provisions, Obamacare guaranteed that as of 2014, insurance companies would be forbidden from denying coverage or charging higher rates to adults with pre-existing conditions (children with pre-existing conditions were protected from price and coverage discrimination as of 2010). The pre-existing condition prohibition, along with other terms of Obamacare, remains good law and will continue to enjoy that status unless replaced by a replacement law signed by President Trump.
The logic of ensuring that persons with pre-existing conditions can obtain health care for prices that are less than what the market would otherwise dictate is that some of those persons wouldn’t be able to afford health care if insurance companies charged them a rate that reflected their problematic health history. Along those lines, if persons with pre-existing conditions are pooled with persons without such conditions, insurance companies might charge higher rates for everyone, but the increase would be borne in smaller amounts by everyone rather than requiring those with pre-existing conditions to pay much more.
Critics of Obamacare, however, charge that some large insurance companies have exited health-insurance exchanges (state-specific insurance markets) on grounds that Obamacare economics do not work for them. It is worth remembering that while health insurance companies are in the business of providing care, they are still businesses. Health care companies, like other companies, are designed to generate a profit, and they are not obligated to conduct business in markets that are unprofitable. To illustrate this concern, Aetna and Wellmark (a Blue Cross Blue Shield company) left the exchange for Iowa last month. By 2018, persons living in Iowa may not have any health care companies to choose from when trying to purchase individual health plans. Of related concern, if companies don’t cover anyone in certain states, there would be less competitive health care markets and potentially diminished access to insurance.
As an attempt to redesign the economics of Obamacare, the AHCA would, among other things, permit states to obtain a waiver from the U.S. Department of Health and Human Services. If granted, the waiver would allow insurance companies that conduct business in waived states to offer a higher price to persons with pre-existing conditions. Advocates of the AHCA believe that this change would make insurance companies more likely to remain in states and compete with rival insurance companies, thereby (in theory) lowering health care prices for consumers. As a means of mitigating the impact of persons with pre-existing conditions having to pay more, the AHCA would set aside $8 billion for those persons over the next five years. This figure would be shared among states that obtain waivers. Critics of the AHCA contend that $8 billion would not be enough to ensure that persons with pre-existing conditions do not pay more. Plus, critics say, it’s uncertain if additional monies would be provided after the five years expire.
The AHCA now faces a very uncertain path in the U.S. Senate, where the Republicans have a slim 52–48 majority. If just three Republican senators oppose a health care bill, it would almost certainly fail as no Democratic senators are expected to join the Republicans on this issue. A sizable group of Republican senators have expressed serious concerns about President Trump’s health care ambitions and/or the AHCA, including how the AHCA would impact access to Medicaid and rural hospitals. Several of those senators, such as U.S. Senator Susan Collins of Maine and U.S. Senator Rob Portman of Ohio, are from so-called “purple” states where voters are evenly divided between Democrats and Republicans and are collectively considered moderate or independent.
Rather than consider the AHCA, it is expected that the Senate will draft its own health care bill. Such a bill will likely incorporate some parts of the AHCA but changes others. It is possible, if not likely, that the Senate’s proposed legislation will treat pre-existing conditions more along the lines of Obamacare than the AHCA. If a Senate bill ultimately passes, it would need to be reconciled with the AHCA in a joint Senate-House committee—a process that could lead to a third bill that, before it became law, would need majority support from both chambers and also approval from President Trump. To put it mildly, there are many ways health care law reform could fail. There’s thus a good chance Obamacare will remain the law of the land for the foreseeable future.
How health care reform could impact retired NFL players
The NFL and the NFL Players’ Association, along with other pro leagues and their respective players’ associations, are no doubt monitoring legislative developments concerning health care.
The collective bargaining agreement between the NFL and the NFLPA dictates that vested players—those who are credited with playing three seasons in the NFL—are entitled to five years of continued health care insurance following retirement. This is a high quality of insurance that is generally at no expense to the player. Further, following those five years, vested retired players are eligible to continue health care coverage, though at additional cost. Retired players may also be eligible for benefits through workers’ compensation insurance, various NFL programs associated with the concussion settlement and other insurance policies that they or their spouses have purchased.
While NFL-sponsored health care for retired players is not without its advantages and is certainly better than employer-sponsored health care for many other kinds of retired workers, it nonetheless reveals drawbacks. One key drawback is that most retirement benefits do not extend to non-vested players. Such players leave the NFL before accruing three credited seasons, with a credited season being one where a player was on, or should have been on, full pay status for at least three regular season games. It’s unclear what percentage of NFL players vest as the average career span of NFL players is a point of contention. The Wall Street Journal recently found the average NFL career lasts 2.5 years while the league claims it is six years. Regardless of which number is correct, it is clear that many NFL careers end before vesting occurs. In fairness to the NFL and NFLPA, non-vesting players can qualify for other kinds of NFL retirement benefits, including the league’s Disability and Neurocognitive Disability Benefit Plan for players with permanent and total disabilities. Still, the vesting requirement is a major limitation for players who likely earned much less in their brief NFL careers than those players who enjoyed lengthy and typically lucrative careers.
Second, many retired NFL players do not begin to suffer major health issues until they are in their 40s or 50s. By that age, some retired players will be in the marketplace for insurance and some won’t be employed. If insurance companies can charge them more for pre-existing conditions, many of them will find it costly to obtain insurance.
The potential impact of this effect is unknown since Obamacare remains the law. But if Obamacare becomes Obamacare-lite or Trumpcare, expect the NFLPA to seek changes from the NFL in their collectively bargained retirement program. However, it might be some time before we’d see changes: the current CBA doesn’t expire until after the 2020 season.
Michael McCann is SI’s legal analyst. He is also an attorney and a tenured law professor at the University of New Hampshire School of Law.