I Am Essential Coalition Urges Obama to Enforce ACA Nondiscrimination Provisions

The I Am Essential coalition sent a letter signed by 124 organizations to voice strong support for the patient protections the Obama Administration is proposing insurance companies must include as they develop their 2017 Qualified Health Plans (QHPs), but is calling again on the Administration to actually enforce them.

In comments on the Draft 2017 Letter to Issuers in the Federally-facilitated Marketplaces, the group thanked HHS Secretary Sylvia Burwell for including statements in past proposed rules and the current Draft Letter to Issuers regarding plan benefit design and what constitutes discriminatory practices by insurance companies. But the groups state that based on the first three years of reviewing Affordable Care Act (ACA) plans, "we have seen little evidence that actual enforcement is happening."

"While we are encouraged by the Administration's repeated statements that plans cannot discriminate against patients, by, for example, placing every drug to treat a certain condition on the highest cost-sharing tier, we have seen little evidence of actual enforcement," said Carl Schmid, deputy executive director of The AIDS Institute. "For these protections to be meaningful, CMS and the states need to uphold the law and protect patients, particularly those who have serious and chronic health care needs."

The I Am Essential coalition of patient groups is not alone in calling for an end to discrimination in ACA plans. Late last week, Senators Sherrod Brown and Patty Murray sent a letter to Secretary Burwell signed by 15 Senate Democrats urging the Obama Administration to fully enforce the ACA nondiscrimination provisions by better defining what constitutes discrimination.

The letter stated, "Too often in the Marketplace, insurers are able to actively discourage people from enrolling in and accessing health care by denying costly but proven services, restricting necessary treatments through adverse drug tiering and prior authorization requirements, placing limitations on access through plan design and through narrow networks that restrict certain types of specialists in a discriminatory manner."

In the I Am Essential letter, the patient coalition voices its support of the Administration's reminder to issuers that they must follow various federal civil rights laws and Section 1557 of the ACA, but points out that regulations that implement Section 1557 have not been finalized yet, and the proposed rule did not detail which plan benefit design practices constitute discrimination against beneficiaries.

To prevent discrimination, the patient coalition voiced strong support for CMS' proposed instructions to issuers as they develop their 2017 plans, including not placing most or all drugs that treat a specific condition on the highest cost formulary tiers. CMS indicated it will also examine:

* High plan cost-sharing and out-of-pocket costs
* Drug formulary adequacy based on clinical treatment standards
* Tier placement of drugs, including adverse tiering
* Excessive prior authorization and/or step therapy requirements

The groups also noted the importance of transparency tools including formulary lookup tools, machine readable drug lists and an out-of-pocket comparison tool, all of which would assist beneficiaries in estimating costs and choosing appropriate coverage.

"Patients with chronic conditions have faced barriers to care and high costs under many of the plans offered in the Marketplace," said Beatriz Duque Long, senior director of government relations for the Epilepsy Foundation. "Until meaningful definitions and protections are put in place and enforced, they will continue to face unnecessary hardship and difficulty accessing necessary medications and treatment."

"We realize that implementing the ACA has been a large undertaking, and we look forward to ensuring that it works for all beneficiaries in the years ahead," said Andrew Sperling, director of federal legislative advocacy at the National Alliance on Mental Illness. "But, beneficiaries deserve access to quality and affordable care and treatment now. It is past time to take action against some of the issuers who are engaging in these discriminatory practices. We urge HHS to enforce the patient protections now. "

Signatories to the letter included The AIDS Institute, American Nurses Association, Arthritis Foundation, Easter Seals, Epilepsy Foundation, Human Rights Campaign, Lupus Foundation of America, March of Dimes, National Alliance on Mental Illness, National Kidney Foundation, National Multiple Sclerosis Society, and the National Viral Hepatitis Roundtable.

The full text of the letter to HHS Secretary Burwell and the full list of signers can be viewed here.