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.

Gavel-CreativeCommons

Late last week, the New York State Department of Financial Services (DFS) called for a hearing to discuss the consequences of a merger of the Anthem and Cigna health insurance companies. HCFANY applauds DFS for this action. HCFANY wrote to DFS in early March shortly after the potential merger was announced. In the letter, HCFANY urged the Department to carefully review this merger and hold a public hearing on how it affects competition in the state Marketplace, which ultimately impacts the costs of premiums and quality of care for consumers.

This merger would combine the second-largest and fourth-largest health insurers in the country and reduce the number of major health insurers in the U.S. from five to three. According to a recent article in Politico, this would mean that Anthem’s total market share would increase to 31 percent in New York State. In the New York Metropolitan area, Anthem would control almost 70 percent of the commercial self-insured market in three of the five boroughs. Increased market share would give Anthem the ability to dictate prices for providers and likely have a negative impact on access to health care for New York’s consumers.

If you would like to weigh in on the proposed Anthem-Cigna merger, there will be a public hearing held on Thursday, September 8 at 10:00 AM in New York City. If you are interested in testifying at the hearing, please write to DFS at New York State Department of Financial Services, Public Affairs Office – Anthem-Cigna Merger New York, NY 10004 OR e-mail public-hearings@dfs.ny.gov with the subject line: “ANTHEM-CIGNA 2016 HEARING.” Requests to testify must be received at least five business days prior to the hearing.

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.

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.