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.

CCF

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.

CHP Picture

Last week, The Atlantic published an article entitled “The Unconscionable Difficulty of Getting Health Insurance for a Newborn.” The article tells the story of contributing writer Ester Bloom and her difficulties getting immediate Child Health Plus (CHP) insurance coverage for her newborn son. Coverage for Bloom’s son did not begin until six weeks after his birth, and in the interim she instead had to pay for much more expensive individual coverage through the Marketplace.

However, the original article neglected to mention the passage of Bill S4745/A7155 in December of 2015, which allows babies born into low and middle-income families eligible for Child Health Plus from the day they are born. Under this law, which takes effect January 1, 2017, parents who apply before the baby is born, or within 60 days of birth, will have CHP coverage for the newborn from the date of birth. Those who submit an application more than 60 days after the birth will be covered from the date of application. This law addresses the 45 day gap between parent application and newborn enrollment in CHP that Bloom describes in the article. For more details please see HCFANY’s original blog post from December 28, 2015.

We were excited to see a correction published on June 21, which included information about the law and how it will improve coverage for newborns under CHP.

This article also highlights the many challenges that consumers face when navigating the health insurance system as well as the importance of the trained assistance that health care Navigators, Certified Application Counselors, and Community Health Advocates can provide. New York State has been a leader in offering consumer assistance through these programs.

Parents who would like to enroll a child in CHP can do so through the New York State of Health Marketplace or by connecting to the Community Service Society Navigator Network at (888) 614-5400 or through their website.

mergerwatch

Hospitals have been consolidating at increased rates over the last five years. Merger and acquisition transactions grew from 66 transactions in 2010 to 112 in 2015. Earlier this month, the MergerWatch Project released the results of a national survey, which concluded that current state hospital oversight programs are inadequate to protect consumers’ access to needed health care services in their own communities.

By analyzing current Certificate of Need (CON) laws for hospital oversight, MergerWatch found that only 35 states and the District of Columbia actually have a Certificate of Need Program in place. California has a similar procedure through the Office of the Attorney General. In states that do have CON Programs in place, the majority do not require CON review for affiliations that do not involve formal sale, purchase, or lease or for hospital closures.

These less formal affiliations can still lead to a loss of access to critical health care services for consumers. In Sierra Vista, Arizona, for example, women lost access to many reproductive health services, including tubal ligation, when a nearby secular hospital joined a Catholic hospital system in 2010. Women in need of such services are sent to the nearest non-religious hospital, which is 80 miles away.

MergerWatch also developed a grading system based on whether a state’s hospital oversight program meets certain criteria including when CON review is required, CON review standards, and effective engagement with affected consumers and the public. Under this grading system only six states receive an A or A-. New York State receives a B grade overall.

Many existing CON Programs are not consumer friendly and make it difficult for consumers to access material information about hospital transactions and how they will impact their access to health care. Notably, only nine states require consumer representation on the CON reviewing body, and only six states require a separate public hearing for each CON application.

The final section of the report outlines model policies for state oversight of hospital transactions and action steps for advocates to take ensure that consumer interests are protected.

Access the full report here.