Regulators urged to be more active in preventing health insurance discrimination

A group of non-profit consumer organizations is urging state regulators to perform more due diligence in guarding against health insurance discrimination in their respective states.

Representatives from the National Health Law Program, the National Women’s Law Center, the HIV+Hepatitis Policy Institute and the Whitman-Walker Institute delivered a collective presentation on health insurance discrimination to the National Association of Insurance Commissioners at its recent Spring 2024 Meeting.

Just ahead of a final ruling on Section 1557 of the Affordable Care Act, which pertains specifically to discrimination in public healthcare, the groups are asking regulators to take actions to guard against health insurance discrimination such as:

1. Remind insurers of their obligation to comply with the act
2. Carefully check for discriminatory benefit design
3. Review and revise state essential health benefits benchmark plans
4. Monitor compliance through complaint

Groups highlight 'key issues'

“We’re on the verge of getting a new final rule from the Department of Health and Human Services, and so we felt that it was important to highlight some of the key issues from a consumer perspective, but also the important role that you play as state regulators in compliance, monitoring and enforcement,” Wayne Turner, senior attorney, National Health Law Program, said during the meeting.

Discriminatory benefit design

One of the major points Turner encouraged regulators to focus on was preventing discriminatory benefit design.

He strongly urged them to ensure nothing is approved that could potentially be discriminatory, citing cases where consumer organizations found discrimination in drug formularies, cost-sharing structures and coverage exclusions. All of the cases he pointed out “had been reviewed and approved,” he said.

“We think it’s really important for state regulators and also federal authorities to take an active role in reviewing these benefit design features for discriminatory practices,” Turner noted.

He also included prior authorization approvals and the use of artificial intelligence in this category. He noted that these can potentially be discriminatory without careful attention and review.

States were encouraged to consider amending their laws to require prior authorization be evidence-based and updated annually, similarly to the practice in Washington state.

Additionally, Turner urged regulators to pay particular attention to the use of AI for prior authorization. AI use in insurance remains a hot-topic button, with Colorado one of the few states to implement individual regulations to date.

Turner acknowledged that consumer organizations are paying close attention to developments in this regard.

Similarly to the suggested approach for discriminatory benefit design, he also said regulators should actively review EHB benchmark plans to ensure they don’t include coverage exclusions for services such as gender-affirming care or supplies like durable medical equipment.

“Look at things like visit limits, which cap coverage without regard to medical necessity,” Turner said. “We see arbitrary caps on things like physical therapy or certain kinds of rehabilitative services that are really targeted to excluding people with certain disabilities from the coverage that they need.”

He asserted that part of the responsibility of state regulators when reviewing plans is to update them as needed to avoid any plans being approved that may have discriminatory benefit design features.

Compliance and complaints

Turner said ensuring compliance should be one of the “first and foremost” steps state regulators should take once the final ruling on Section 1557 has been made.

“Make sure that insurers that are operating in your states are just aware of these new protections and the new regulatory requirements,” he said. “That can take the form of a bulletin or a guidance.”

He suggested the complaints process be involved as a way to monitor this, urging regulators to not only track complaints but also respond to them in a timely manner.

However, he urged regulators not to stop there.

“Conduct data calls and market conduct exams, and then make that information publicly available when you are investigating and coming to conclusions so that advocates in your states can benefit from that information,” he said.

The most recent changes to Section 1557 of the Affordable Care Act seek to address whether entities can refuse service or treatment to individuals on the basis of religious beliefs, exclusions for HIV medication and prenatal care, sex and gender discrimination and other matters related to non-discrimination in healthcare. The final ruling is expected sometime this year.

The National Health Law Program, founded in 1969, is an advocacy and legal group that litigates and advances health rights for underserved individuals.

The HIV+Hepatitis Policy Institute, founded in 2019, advocates for affordable healthcare for affected individuals and communicates concerns of the community to policymakers.

The Whitman-Walker Institute, founded in 1973, advocates for equitable healthcare through research, advocacy and education.

The National Women’s Law Center, founded in 1972, is a civil organization that aims to protect and advance the legal rights of women and girls.

Rayne Morgan is a Content Marketing Manager with PolicyAdvisor.com and a freelance journalist and copywriter.

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Rayne Morgan is a journalist, copywriter, and editor with over 10 years' combined experience in digital content and print media. You can reach her at [email protected].