Did New York's John Faso break his promise to a woman with cancer?

The House Majority PAC says in this ad that Congressman John Faso broke a health care promise.
U.S. Rep. John Faso of New York promised to protect a constituent's health coverage.
U.S. Rep. John Faso of New York promised to protect a constituent's health coverage.

With a melancholy piano soundtrack and video, an ad tells a sad tale: A woman in a tan coat, knit hat and black gloves tells U.S. Rep John Faso outside his Kinderhook, N.Y., home, "I have a brain tumor." She has health coverage through Medicaid but worries Congress will whittle it away. "I need you to say ‘I promise that we will not take this away from you.’"

Faso says, "I promise. I promise." He hugs the woman. The screen goes to black with only these words: "47 days later." Then a newscaster’s voice comes on, and a newspaper page appears with a story on a health care vote. The voice: "This bill passed by one vote. This razor-thin margin is going to throw millions and millions of sick people out in the cold."

The ad concludes, "Congressman John Faso broke his promise."

The ad is from the House Majority PAC, a super PAC that has ties to House Democratic leader Nancy Pelosi and hopes to elect a Democratic majority in November. The same theme, with the same video, was used earlier in an ad against Faso by the Democratic Congressional Campaign Committee.

Is it accurate that "Faso broke his promise?" The PAC sponsoring the ad says absolutely, while Faso’s campaign rejects the claim.

The facts behind the claim are intriguing, but there are too many uncertainties for us to assess it on the Truth-o-Meter. Our efforts to interview the woman in the ad were unsuccessful, so we were not able to better understand certain circumstances about her Medicaid status and past insurance coverage.

Nevertheless, we still can analyze the underlying claims in the ad about health coverage, so we’ll do so, starting with this:

Faso voted for a health care bill in 2017 that under some circumstances could have removed health insurance protections for people with pre-existing medical conditions if they had private insurance. New Yorkers would be cushioned, since New York had its own protections.

But the health care bill also would have affected Medicaid, as a result of the way the Republican bill tinkered with the program’s finances. Would this have harmed the woman in the ad?

There are a lot of what-ifs.

Meet Andrea Mitchell

Mitchell, 36, of upstate New York, went to school with Faso’s children, and Faso’s wife was her school nurse, according to a longer version of the video from the health care protest at Faso’s home, shown last year by Rachel Maddow on MSNBC.

In the fuller video, Mitchell says, "I have a brain tumor, and a spinal condition." The tumor is benign but she has had multiple strokes, the Associated Press reported. Mitchell told Maddow that "fortunately, right now I have Medicaid, because my health expenses and my disabilities have put us in a position where that needs to be the health insurance that I have."

Medicaid is a jointly funded federal-state health program for low-income Americans. The Affordable Care Act of 2010, passed by then-Democratic House and Senate majorities, expanded Medicaid to many more people by expanding income eligibility, and guaranteed the federal government would pay most of those new Medicaid costs. The act also barred private insurers from refusing to cover pre-existing conditions or charging higher premiums because of them.

Faso is a first-term congressman. Before he arrived, Republicans had tried repeatedly to repeal or roll back and replace the Affordable Care Act’s protections, including the federal funding commitment to Medicaid and assurances for people with pre-existing conditions. That explains why Mitchell told Faso, "I need you, as a human being, to say, ‘I promise that we will not take this away from you.’"

He promised, and he hugged her, the longer video version on MSNBC showed. A crowd applauded. Faso reached out and appeared to kiss her on the cheek.

This was on Jan. 28, 2017. Forty-seven days later, with Faso’s support, the House Budget Committee voted to advance the American Health Care Act, a Republican repeal-and-replace bill, to the full House. On May 4, 2017, Faso and most other House Republicans voted to pass the bill, though it died in the Senate.

The American Health Care Act had two relevant changes to consider for purposes of the ad that criticizes him. It would have:

• Given states more authority for health care policy, letting them change the private insurance ban on pricing for pre-existing conditions if, after getting federal permission, they wanted to try alternatives such as state-based high-risk pools, or programs just for people with high medical costs.

• Reduced the federal commitment to paying 90 percent of the costs of care for people who got Medicaid through the 2010 health law expansion, and capped future spending on a per-patient basis to better control federal costs in the overall Medicaid program.

Gaming out private insurance

So how might this bill have affected people with pre-existing conditions who gained coverage from the 2010 health law?

For those with private insurance, it would depend on their state. If a state wanted a waiver in order to try something different like a high-risk pool, it could apply for one and seek federal funding. Theoretically, people with the highest costs for medical care then could enroll in the pool and be covered.

But health care for people in groups like this is expensive, and a number of analyses including one from Avalere Health predicted the federal contribution to the pools would be inadequate, forcing the high-risk pools to limit enrollment or coverage.

Discerning the effect of this provision on New York, which Avalere estimated had 112,000 people with pre-existing conditions in the individual market last year, is more difficult.

That’s because New York law already protected people with pre-existing conditions, long before the Affordable Care Act began. The state prohibited insurers from charging more based on sickness or health — and had the bill Faso supported passed, New York state legislators would likely keep their protective law in place anyway, said Bill Hammond, director of health policy at the Empire Center for Public Policy, a fiscally conservative think tank in Albany.

The Medicaid problem

But what about people with Medicaid, like Mitchell?

Those who kept their Medicaid-expansion coverage continuously would have been able to stay on under the House bill, and the federal government still would have paid states the 90 percent match.

And unlike private insurance before the Affordable Care Act, Medicaid "does not have and has never had health-status related restrictions on enrollment," said Sabrina Corlette, a research professor at Georgetown University’s Health Policy Institute.

Ability to enroll without health discrimination, however, is not the same as ability of a state to cover its share of the costs. The 90 percent federal contribution sounds generous, yet in reality most people cycle on and off Medicaid as their circumstances change. As a result, fewer than one-third of those enrolled in the Medicaid expansion at the start of 2020 would still be enrolled two years later, the Congressional Budget Office said in an analysis of the House bill. The number would go down dramatically each year from there.

Couldn’t they just re-enroll later? Under the bill Faso voted for, states would get much less money to pay for care when that happened. Instead of paying for 90 percent of the health care costs, the federal government under the 2017 GOP bill would have paid the same as it paid for traditional non-expansion, lower-income Medicaid — which in New York is 50 percent of the costs, Hammond said. The state would have to pick up the rest.

Not only that, but the GOP bill would start slowing the overall federal payments for the entire Medicaid program, in an effort to contain costs. Medicaid, currently with an open-ended promise to pay whatever is required, would get federal spending caps.

"With less federal reimbursement for Medicaid, states would need to decide whether to commit more of their own resources to finance the program at current-law levels or whether to reduce spending by cutting payments to health care providers and health plans, eliminating optional services, restricting eligibility for enrollment, or (to the extent feasible) arriving at more efficient methods for delivering services," the CBO said.

There are different views on how this would play out in New York. The state might have weathered the new federal per-person spending caps just fine, Hammond said, because New York has done a good job in recent years of keeping its per-person Medicaid spending growth modest — and lower than the national average.

But an analysis by Manatt Health, a legal and consulting firm, found that under the Senate version of the 2017 House Republican bill, New York would lose $40 billion in federal Medicaid funds, a drop of more than 12 percent, through 2024.

Changes of that magnitude could force the state to reduce its Medicaid enrollment or cut benefits.

"Any cuts to Medicaid puts all people that are included under a Medicaid expansion at risk," Mitchell said in a video she made after Faso said on his campaign website that the claims against him were false. "That's just a fact."

Correction: An earlier version of this story said a consulting firm found changes to the health care law could cost New York $40 million in Medicaid funds. It has been corrected to say $40 billion.​