Four Florida insurers allegedly discriminate against people with HIV/AIDS by structuring their prescription drug benefits so that patients are discouraged from enrolling, according to a complaint filed by health advocacy groups.
According to the complaint filed with the Office for Civil Rights at the federal Department of Health and Human Services, the insurers — CoventryOne, Cigna, Humana and Preferred Medical — violated the Affordable Care Act and federal civil rights laws by placing all covered HIV/AIDS drugs, including generics, in the highest drug tiers that require significant patient cost sharing.
Under the Affordable Care Act, insurers are prohibited from rejecting customers because of medical conditions. They also cannot offer plans with benefit designs that discriminate based on someone's degree of disability, health conditions or expected length of life.
People with other serious medical conditions face similar prescription drug cost-sharing problems, says Dan Mendelson, CEO of Avalere Health, which conducted an analysis of 123 exchange plan formularies that included every state.
The analysis, funded by the trade group for prescription drug makers, found that more than 60 percent of mid-level silver plans placed covered medications for multiple sclerosis, rheumatoid arthritis, Crohn's disease and some cancers in the highest formulary tier. Up to 35 percent of plans placed HIV/AIDS drugs in the highest tier, according to the analysis.
Insurers are trying to shield themselves from adverse selection, says Mendelson. Now that the health law prohibits insurers from rejecting people with serious health conditions, "if your benefit is more generous than others you'll get everyone with that illness," he explains.
The insurers in Florida say they're in compliance with the law.
"The Coventry formularies meet ACA requirements and provide access to drugs necessary for treatment under the current clinical guidelines," says Cynthia Michener, a spokesperson for Aetna, Coventry Health Care's parent company.
"Cigna's marketplace exchange plans offer consumers a variety of benefit options so they can pick one that best meets their needs," says Cigna spokesperson Karen Eldred. Humana and Preferred Medical offered similar responses.
States aren't well equipped to police drug formularies, consumer advocates say, even though they have primary responsibility for regulating health insurance.
"A state insurance regulator doesn't have the clinical expertise to know whether the common HIV drugs are covered and how they should be covered on a formulary," says Katie Keith, director of research at the Trimpa Group, a consulting firm that works on lesbian, gay, bisexual and transgender issues. "That's why you need strong federal guidelines."
The federal government hasn't issued guidelines on the health law's antidiscrimination provisions.
Patients with HIV/AIDS are in a tough spot, advocates say. Even though the health law caps total out-of-pocket spending at $6,350 in 2014, many of these patients are low income, and coming up with cash for a month's worth of drugs is often more than they can manage.
Advocates say they're trying several strategies to help HIV/AIDS patients. For instance, if someone got inaccurate information about a plan from a health insurance assister who helped them sign up, that person may qualify for a special enrollment period that enables them to switch plans outside the regular enrollment period, says Vicki Tucci, a lawyer with the Legal Aid Society of Palm Beach County.
If a person can't switch plans, Tucci says her organization can sometimes get funds from the federal Ryan White HIV/AIDS Program to pay for covered medications. As a last resort, the Legal Aid Society has disenrolled people from health plans so that they can qualify for HIV/AIDS medication assistance that is available only to uninsured or underinsured people.
But that comes with other risks.
"When we pull them off, they can go to the clinics and get their HIV care, but if they end up in the hospital because of diabetes or a stroke, they don't have health coverage," says Tucci.