ACA Protects People with Chronic Conditions Against Discrimination in their Health Coverage

CID-NYGuest blog by Heidi Siegfried, Project Director at New Yorkers for Accessible Health Coverage (NYFAHC) and Health Policy Director, Center for Independence of the Disabled. A few days ago, Health Affairs published an article that highlighted how the non-discrimination provisions of the Affordable Care Act (ACA), Section 1557, can protect consumers against benefit designs that discriminate against people with chronic conditions or significant health needs.

New York has long prohibited denial of coverage or premium variation based on health status and the ACA now prohibits charging higher premiums or denying coverage for people with pre-existing conditions. Still, network and formulary designs can have the effect of discriminating against people with serious illnesses and disabilities.

People often overlook the fact that Section 1557 prohibits discrimination based on disability status as well as race, color, national origin, sex, and age.  HCFANY and NYFAHC submitted comments to the U.S. Department of Health and Human Services (HHS) on the proposed rules for Section 1557 in November 2015. In these comments, we asked HHS to specifically define discriminatory benefit design in the regulations implementing Section 1557 and to include all beneficiaries with chronic conditions or serious illnesses.  Although HHS did not provide a definition, they do consider benefit design discrimination on a case-by-case basis and will review complaints of disability-based discrimination. HHS also provides examples of potentially discriminatory benefit designs such as placing all HIV drugs on the highest tier.

The Health Affairs article points out that the Americans with Disabilities Act was amended to define disability as an impairment of major bodily functions such as immune system, normal cell growth, digestive, bladder, neurological, respiratory, and endocrine systems which would reach many people with chronic conditions.  Therefore, when consumers encounter discriminatory formularies, coverage limitations, or plans that exclude certain specialists, they can use Section 1557 to enforce their rights to non-discriminatory benefit design by filing complaints with the Office of Civil Rights at HHS or by challenging the plans in court.

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Two weeks ago, children’s health advocates from across the country came together in Washington, DC for the Georgetown University Health Policy Institute Center for Children and Families Annual Conference. The conference provides an excellent opportunity for national and state advocates to share their experiences and learn from one another. This year’s conference theme was “Clear Skies or Foggy Times Ahead for Child and Family Coverage?” Topics included the future of children’s health coverage, strengthening and expanding Medicaid, and improving the quality and delivery of children’s health services.

We heard from experts in the field about the impact of perception, race, and bias on Medicaid, avenues for improving network adequacy, and the final Medicaid managed care regulations and what they mean for children and families.

HCFANY’s Children, Youth, and Families Task Force represented New York consumer advocates at the conference. HCFANY’s Elisabeth Benjamin, Vice President of Health Initiatives at the Community Service Society of New York, spoke on a panel that explored the means by which advocates can work to improve access to care in both public and private coverage programs.

shoppingcartPremiums in New York will increase this year for people buying plans in the individual and small group markets. But thanks to our public rate review process, the increases are smaller than what carriers requested. Carriers asked the Department of Financial Services (DFS) to approve an average 18 percent increase (learn more about rate review here). After reviewing their requests and public comments (including ten letters submitted by HCFANY), DFS approved an increase of 16.6 percent for the individual market and 8.3 percent for the small group market. DFS estimates that this will save consumers $302 million in 2017.

While any premium increase is difficult for consumers to bear, rate review limits increases to those that are necessary because of legitimate cost trends in the health insurance market. Other states also have a rate review process, but New York’s is special because it allows public participation. Carriers who want to sell insurance in our marketplace have to publicly justify their requests for premium increases. And the public can tell the decision-makers at DFS exactly how premium costs impact their lives. Rate review can’t eliminate all premium increases, but for the third year in a row, it has reduced them (we blogged about previous results in 2015 and 2014).

Consumers who are concerned about high premiums should remember that these average increases will not necessarily result in large increases for individuals, because most individuals who purchase marketplace plans receive premium subsidies. Premium increases should also be considered in context. The Affordable Care Act (ACA) did not eliminate premium increases, but it did successfully slow them down. Consumers are paying lower premiums today than was projected pre-ACA and are getting plans that offer significantly better benefits for their money.

Additionally, concerned consumers should take advantage of the Marketplaces created by the Affordable Care Act to shop around. Thanks to the New York State of Health, it has never been easier for consumers to compare their health insurance options. And every New Yorker can find local, in-person enrollment assistors to help make the best choice. Rate review is one of your tools for keeping premiums down in New York – open enrollment, which starts November 1, is another.

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Guest blog by Max Hadler, Health Advocacy Specialist at The New York Immigration Coalition

Despite the major health care coverage gains achieved under the Affordable Care Act, more than 450,000 New Yorkers remain uninsured because their immigration status makes them ineligible for affordable coverage. As a result of the continued failure to approve federal immigration reform or lift health coverage restrictions on many groups of immigrants, it continues to fall to state and local governments to pick up the slack. Health Care For All New York has responded to the dire lack of coverage options for immigrants by launching the Coverage 4 All campaign under the leadership of two of the coalition’s member organizations, Make the Road New York and the New York Immigration Coalition.

The campaign’s mission is to obtain affordable coverage options for all New Yorkers, regardless of immigration status. A shorter-term goal is to expand coverage to a smaller group of immigrants who are “permanently residing under color of law” (PRUCOL). These are people whose presence in the U.S. is known and may be unauthorized, and who have received confirmation from the federal government that it has no intention of deporting them. In New York, immigrants who are PRUCOL are eligible for state-funded Medicaid when they meet the income requirements (less than $16,242 annual income for a single person). However, the same people are not currently eligible for the Essential Plan, New York’s low-cost, comprehensive coverage program for low-income residents whose incomes are too high for Medicaid (up to $23,540 annually for a single person). This restriction runs counter to New York’s history of providing coverage to many immigrants who are excluded from federally-funded programs.

Most immigrants who are PRUCOL are young adults who grew up in the U.S. and have Deferred Action for Childhood Arrivals (DACA) as a result of President Obama’s 2012 executive order providing them two-year work authorizations and a reprieve from deportation. These young people are encouraged to work as a result of their DACA status but are then faced with a dearth of affordable coverage options when their incomes increase beyond the Medicaid threshold because they are ineligible for the Essential Plan and prohibited from accessing tax credits through the New York State of Health insurance marketplace.

To begin to remedy these coverage gaps, the New York State Assembly is working to expand Essential Plan eligibility to include immigrants who are PRUCOL. The Assembly included $10.3 million in its 2016-17 budget to provide this coverage, but the funding was ultimately cut in budget negotiations. Assemblymembers Richard Gottfried and Marcos Crespo have since introduced legislation that would expand Essential Plan eligibility to include immigrants who are PRUCOL. Bill A10054 was successfully voted out of the Assembly Health Committee on May 17 and is now awaiting a vote by the Ways and Means Committee. HCFANY has submitted a memorandum of support for the bill. Others are encouraged to submit their own memorandums and to borrow language from the HCFANY memo as needed. Please contact me at the New York Immigration Coalition if interested in registering your support (mhadler@nyic.org).