Burien man sues Kaiser after being denied coverage of hearing aids

Dec. 18—A Burien man is suing Kaiser Permanente after the health system denied coverage of his hearing aids, which he alleges violates the Affordable Care Act's anti-discrimination law.

The complaint, filed Wednesday in U.S. District Court for Western Washington, is the first nationwide class-action lawsuit to challenge the hearing aid exclusion in Kaiser's health insurance plan, said attorney Eleanor Hamburger, of Sirianni Youtz Spoonemore Hamburger PLLC.

Hamburger is representing Jason Delessert, who has bilateral sensorineural hearing loss and who's spent much of the last year trying to figure out how to pay for devices he says are necessary for him to work, travel, socialize and "live a normal life."

"When I was a kid growing up, being socially isolated is hard. It's awful," Delessert, 35, said in an interview this week. "I don't want other people to have to go through that. Hearing aids should be covered, like any other medical equipment."

A spokesperson for Kaiser did not immediately return a request for comment.

Delessert started using hearing aids in middle school. When he was growing up, they were covered through his father's plan, which allowed him to see an audiologist and get a new pair every three years. Because his dad was a carpenter, a job that could put people at higher risk of hearing loss, the insurance plan specifically included coverage for related services.

When Delessert turned 26, he was no longer eligible to stay on his dad's plan. He stopped getting new hearing aids because they were too expensive.

Then last year, he heard about new legislation that had passed, and required coverage of hearing instruments and related care, along with biomarker testing, fertility treatment and other health services. The law was scheduled to take effect this past January, and he wondered if it would apply to him.

He called several insurers and shopped around on Washington Healthplanfinder, the state's ACA-compliant insurance marketplace for Apple Health and qualified health and dental plans. Most insurers said they still didn't cover hearing aids for individual and small group plan members, except Kaiser, which assured him the new law required coverage.

He enrolled in an individual plan.

He started seeing a Kaiser audiologist, but eventually he was told he'd have to pay the full cost for his new hearing aids when he picked them up. What about the new law? His doctor didn't know if it would apply. There was a clear misunderstanding between his provider and Kaiser member services, he said.

"It was shocking how even the doctor was so confused," said his wife, Kristen, 37. "I've never experienced that before."

Eventually, it became clear Kaiser wouldn't cover the hearing aids for Delessert. The new law, which requires providers to cover up to $3,000 worth of hearing instruments every three years, only applies to large group plans, the couple realized.

But Delessert badly needed new ones; he's had his current pair for eight or nine years and they were so cracked and old that at one point last year he had to glue one side back together.

They still didn't work perfectly, so he and his wife gradually stopped going out and socializing. Restaurants were too loud and talking with friends became difficult. Once while at an MRI appointment, Delessert couldn't hear the tech's instructions of when to hold his breath, and he worried he'd have to come back to redo the process.

"I've gotten good at adapting and reading lips, but it wasn't sustainable," Delessert said.

He tried over-the-counter hearing aids, which cost a couple hundred dollars, but "they're just not there yet," he said. While better than nothing, he added, they were "nowhere near a replacement."

"My actual hearing aids are custom-coded to the exact tones and pitches I need to be able to hear," he said. "The over-the-counter hearing aids sounded like a crappy microphone someone shoved in there to try and increase the volume a tiny bit."

When he picked up his new prescription hearing aids earlier this year, the total came to about $4,800.

"I was like, 'Well, I guess we're putting this on the credit card," Kristen Delessert said.

They've spent the year paying it off little by little, but it hasn't been easy, Delessert said.

The new pair has allowed him to live an "entirely different life," said Delessert, who now works as a program manager at ABC Legal Services in Seattle. "I'm so much more social. I'm able to go to work without needing special treatment."

Kaiser generally covers medically necessary, "durable" medical equipment or prosthetics and provides some coverage for hearing loss, the complaint says. But there's also a specific exclusion for hearing aids carved out, meaning Delessert and other enrollees throughout the country still face out-of-pocket costs for the devices.

According to the complaint, the ACA's nondiscrimination provision makes it illegal for health care providers to refuse to treat, or otherwise discriminate against, patients based on their race, color, national origin, sex, age or disability.

Kaiser has already made some changes to its hearing aid coverage this year. In 2020, a similar Washington case brought by Hamburger also alleged Kaiser had violated the ACA provision. The U.S. Court of Appeals for the Ninth Circuit agreed, and the parties reached a settlement in April, which included an agreement for Kaiser to pay $3 million to reimburse some Washingtonians for uncovered expenses for hearing aids and related services.

Because it didn't include enrollees in individual market health plans, however, Delessert wasn't an eligible class member.

Another case involving coverage for hearing aids against Regence BlueShield is ongoing, Hamburger said.

"Prescription hearing aids only treat hearing disabilities," she said in a Wednesday statement. "An exclusion of prescription hearing aids is, in reality, aimed solely at people with hearing disabilities. This is illegal discrimination, and Kaiser knows it."

Because of the exclusion, Delessert said he doesn't know how long he'll have to make do with his new pair, or if he'll be able to afford an upgrade three years from now.

"Everyone should be able to hear," he said. "I've always had good care with Kaiser, but this hearing aid (exclusion) is just not fair."

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