Guest 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.