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FAIRNESS AND NONDISCRIMINATION

FAIRNESS AND NONDISCRIMINATION

FAIRNESS AND NONDISCRIMINATION
May 27
13:21 2021

Public Policy Analysis & Opinion

By Kevin P. Hennosy

FAIRNESS AND NONDISCRIMINATION

A Congressional letter urges the Biden administration to “harmonize” ACA with ADA

Influential Democrats in Congress are asking the Biden administration to publish guidance on implementation of the Patient Protection and Affordable Care Act of 2010 (ACA) focusing on preventing discrimination against citizens with disabilities.

Ultimately, the leaders suggest that the administration “bind” implementation of the ACA to the Americans with Disabilities Act (ADA).

In an April 5, 2021 letter, nine Democratic committee chairs and health policy advocates wrote to Health and Human Services (HHS) Secretary Xavier Becerra and Attorney General Merrick Garland proposing improvements to the implementation of the ACA, with special emphasis on the needs of the disabled population. Rep. Katie Porter, Sen. Elizabeth Warren, Sen. Sherrod Brown, Sen. Tammy Duckworth, Rep. Jan Schakowsky, Rep. Lloyd Doggett, Rep. Rosa DeLauro, Rep. Ro Khanna, and Rep. Barbara Lee all signed the letter.

The letter reviews issues arising from both changes to guidance made by the Trump Administration and recognizing applicable federal court rulings. According to the letter, “Section 1557 of [the ACA] prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs or activities.”

[T]he mental health parity concept provides motivation to address discriminatory coverage determinations.

Furthermore, the letter notes that Section 1557 builds upon related titles and sections of the Civil Rights Act of 1964, the Education Amendments of 1972, the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. “Preventing discrimination against individuals with disabilities requires stringent guidance to harmonize the overarching goals established in the ADA and ACA,” according to the congressional letter. Consistent with that opinion, the letter asks the administration officials to “clarify compliance standards regarding ‘medical necessity’ coverage determinations.”

The congressional leaders opine that ADA provisions should not only shape Administration guidance related to Section 1557 of the ACA, but also the general congressional intent expressed in the act.

The letter states that the whole of the ACA calls for “‘fairness and non-discrimination as basic tenets of coverage in the individual and small group market,’ and exemplifies that ambition by establishing essential health benefits (EHBs), a list of minimum coverages to which all public health plans must adhere.”

For example, the letter urges the HHS Secretary and Attorney General to promulgate rules to extend ADA standards for EHBs to eliminate “‘improper’ denial of claims for prosthetic devices.” At that point in the letter, the narrative presents a series of claim denials by prominent carriers. To hammer the issue home, the writers observed: “Those individuals with disabilities denied the care and resources they need may be bedridden in a way that prevents their inclusion in society and denies their right to equal participation in all facets of life.”

The congressional letter goes on to state that the “ACA has been insufficient to protect the 61 million Americans who live with a disability and who still struggle to access care.” One insufficiency sighted by the letter concerns the definition of the term “medical necessity.”

“Preventing discrimination against individuals with disabilities requires stringent guidance to harmonize the overarching goals established under ADA and ACA,” the letter explains. “As such, [the signatories] ask that you issue guidance to insurers and health plans that will clarify compliance standards regarding ‘medical necessity’ coverage determinations.”

As noted above, the members of the House and Senate asserted that Section 1557 is not the only ACA provision designed to extend AOA policy aims. The letter points to the ACA provision that established EHBs, minimum coverage elements that all public plans must offer, as an example. “In considering these EHBs the HHS Secretary is instructed to promulgate rules that do not discriminate against the health needs of people with disabilities,” wrote the congressional members.

In particular, these leaders point out that the ACA requires the HHS Secretary to “ensure that EHBs are not denied ‘on the basis of … present or predicted … disability.’”

At this point in the letter, the signatories return to their belief that providing clarified compliance standards through a stringent definition of “medical necessity” is vital to proper implementation of the ACA.

The focus returns after a paragraph and a half, when the letter states: “To date, both [the] DOJ and HHS have both [sic] failed to issue any guidance to clarify compliance requirements for health plans.”

Without guidance, the letter notes, insurers may evade coverage requirements altogether, or offer less-than-adequate equipment, prosthetics, or support services. This eventuality leaves disabled individuals immobile and subject to worsening conditions of disability and general health.

“Investigations have found that there is little oversight of insurers when it comes to wheelchair coverage, and as a result children, parents, and families find themselves without the tools they need to live their lives,” pronounces the letter.

It then recounts lawsuits against several carriers: “These discriminatory coverage determinations extend well beyond physical disabilities and into coverage decisions involving those with intellectual and developmental disabilities and mental illness.”

The letter notes that the mental health parity concept provides motivation to address discriminatory coverage determinations. The leaders cited a relatively new California State Statute, which changes the medically necessary measure for claim coverage for mental health and substance abuse treatment.

State Senator Scott Wiener served as lead sponsor of SB 855, which shifts the power to define “medically necessary” from insurers to healthcare providers in the areas of practice noted above.

The letter further recommends that the DOJ and HHS use the California statute as the basis for regulatory guidance concerning mental health, as well as intellectual, developmental, and physical disabilities.

The missive recounts another court case brought against a health insurance carrier that denied payment for mental health services based on an internal definition of “medically necessary care.” As in another case cited by the congressional leaders, this carrier used a definition that directly contradicted the generally accepted standards of care used by providers.

“Among other things, by focusing solely on ‘acute’ conditions, such as whether a patient was actively suicidal,” the courts found each carrier “failed to provide for services that were medically necessary for treating serious, chronic mental health issues,” the congressional signatories pointed out.

Of course, the letter discusses the COVID pandemic. “As COVID-19 has torn through our country, it has left countless Americans with what is now referred to as ‘long haul COVID’ in its wake.”

The signatories reminded Attorney General Garland and Secretary Becerra that medical science is only starting to learn the damage wrought by COVID-19, and that no one can say how many people who suffered from the virus will exhibit a chronic illness or disability. Even persons who suffered relatively short bouts with the illness may have suffered long-term damage to their health.

So, once again, these nine members of Congress urged the Biden administration to take executive action. First and foremost, they asked the administration to provide clarifying guidance to harmonize the non-discrimination protections in the ADA and ACA, thus implementing congressional intent. “The guidance should outline when a medical necessity decision, and the plan under which such decision is made, becomes an arbitrary denial of coverage to persons with disabilities or undermines protections for EHB.”

This message from Congress to the Biden administration will probably be the first of many communications traveling back and forth. Readers should expect attempts by members of Congress to shape the rules that implement the ACA.

The author

Kevin P. Hennosy is an insurance writer who specializes in the history and politics of insurance regulation. He began his insurance career in the regulatory compliance office of Nationwide and then served as public affairs manager for the National Association of Insurance Commissioners (NAIC). Since leaving the NAIC staff, he has written extensively on insurance regulation and testified before the NAIC as a consumer advocate.

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