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Aimed Monthly, Volume 2, Issue 7

Welcome to the July 2020 issue of Aimed Monthly. This month’s issue includes the latest policy, advocacy, and regulatory developments regarding copay accumulators, nondiscrimination protections, short-term limited duration health plans, and Medicaid work requirements. It also includes new resources, including a fact sheet on copay accumulators for employers.

Highlights

#MeToo Meets the Emergency Room

Last month, the Saint Louis University Journal of Health Law & Policy published an article written by Aimed Alliance counsel, Stacey Worthy and Shruti Kulkarni, titled “#MeToo Meets the Emergency Room: Providing and Paying for Care After a Sexual Assault.” In the article, the authors identify several barriers to accessing and affording health care services following a sexual assault. For example, many survivors are often turned away from the emergency room due to lack of proof of health insurance or lack of available sexual assault forensic exams (commonly referred to as “rape kits”). Additionally, although states have laws that require hospitals to provide certain services free of charge, many survivors are improperly billed and hounded by collections agencies, serving to further traumatize individuals. The authors identify applicable laws and recommend actions at both the state and federal levels to better ensure access to and coverage of such services in the future. Read the article in full here.
Comment on Medicaid Best Price Rule and Copay Accumulator Programs

On July 16, 2020, Aimed Alliance submitted a comment to the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) asking the agencies to either abandon a proposed rule on Medicaid or limit the use of copay accumulators. If finalized, the rule would require that copay assistance be included in the calculation of a prescription medication’s Medicaid “best price” if a health plan has implemented a copay accumulator program. This proposed rule could disincentivize drug manufacturers from providing copay assistance to vulnerable patients who may otherwise not be able to afford medically necessary treatments.
Fact Sheet on Copay Accumulator Programs for Employers

Aimed Alliance released a new fact sheet titled “Copay Accumulator Programs: What Employers Need to Know.” The fact sheet explains what copay accumulator programs are, how they impact employees, and why they are used. It also provides an update on recent regulatory activity, including the Notice of Benefit and Payment Parameters for 2021 and the proposed Medicaid rule. It ends with recommendations for employers who are contemplating selecting health plans with copay accumulator programs. View the full fact sheet here.

Case Law Update

  • Short-Term Limited-Duration Insurance Plans
    • On July 17, 2020, the U.S. Court of Appeals for the District of Columbia issued an opinion in Association for Community Affiliated Plans v. United States Department of the Treasury. In it, the Court upheld a rule that allows for short-term limited duration insurance (STLDI) to be renewed for up to three years. As background, STLDI plans are commonly referred to as “skinny plans” or “junk plans.” They do not need to comply with many requirements of the Patient Protection and Affordable Care Act (ACA), including those on preexisting conditions, essential health benefits, annual and lifetime limits, and rescission of coverage. Oftentimes, consumers sign up for these plans under the assumption that they will receive comprehensive coverage, only to find out that their plan does not meet their needs. The rule in question expanded access to STLDI significantly. The case is expected to be appealed.
  • ACA Nondiscrimination Rule and Disability Rights
    • This past weekend marked the 30th anniversary of the passage of the Americans with Disabilities Act—landmark legislation on disability rights. Also of importance to disability rights advocates, on July 14, 2020, the U.S. Court of Appeals for the Ninth Circuit determined that the ACA’s non-discrimination provision (section 1557) prohibits health insurers from discriminating against individuals with disabilities in their plan design. The court ruled on two cases, Schimdt v. Kaiser Health Foundation Plan and E.S. v. Regence Blue Shield, in which the plaintiffs argued that the defendant health plans were discriminatory because they excluded nearly all treatment for hearing loss except cochlear implants. The combined opinion states “ACA specifically prohibits discrimination in plan benefit design, and a categorical exclusion of treatment for hearing loss would raise an inference of discrimination against hearing disabled people, not withstanding that it would also adversely affect individuals with non-disabling hearing loss.”
  • Medicaid Work Requirements
    • On July 14, 2020, Arkansas and the U.S. Department of Justice asked the U.S. Supreme Court of the United States to allow the state to resume its Medicaid work requirements program. The filling was submitted amidst the backdrop of the COVID-19 pandemic, which has caused an increase in unemployment rates and fewer jobs to apply for. The lower court had found the work requirements to be arbitrary and capricious, and more than 18,000 people had lost their Medicaid coverage in Arkansas during the five months in which the requirements were in effect.

Legislative Update

  • H.R. 7647
    • On July 16, 2020, H.R. 7647 was introduced. Sponsored by Rep. Donald A. McEachin, the bill would delay portions of the Notice of Benefit and Payment Parameters for 2021 (“NBPP 2021”) due to the COVID-19 pandemic. More specifically, the bill would delay the provision that explicitly allows health plans to implement copay accumulator programs regardless of whether both brand and generic medications are available. Instead, the bill would require that plans follow NBPP 2020, which prohibited the use of copay accumulator programs in instances in which generics are unavailable. The delay would be effective for a minimum of 12 months from the end of the public health emergency.

Media Coverage

  • Op-Ed on Copay Accumulator Programs in Fortune
    • On July 22, 2020, Fortune published an op-ed co-authored by Aimed Alliance counsel, Stacey Worthy, and Patients Rising Now executive director, Terry Wilcox. The op-ed discusses the NBPP 2021. In particular, the authors highlight problems with the rule, including that the rule may result in more health plans adopting copay accumulator programs, which increase patients’ out-of-pocket costs for medically necessary treatments and could result in health plans violating sections of the ACA.
  • Trouble in Paradise Report Highlighted in Honolulu Star-Advertiser
    • Our report Trouble in Paradise: Assessing the Outcomes of Payment Transformation in Hawai’i continues to receive media attention. Earlier this month, the Honolulu Star-Advertiser published a column that highlights the findings of the report. The column notes that health plans have responded to the COVID-19 public health crisis by loosening regulations, withdrawing monetary penalties, and developing new codes. This reprieve comes during a time when health care practitioners nationwide are experience high burnout levels. Yet, as determined in the report, Hawai’i primary care physicians have expressed widespread dissatisfaction with HMSA’s Payment Transformation model due to perceived deficient methodology and low financial compensation. This model has not changed, despite the COVID-19 crisis. In contrast, the column commends payers who are lifting regulations and penalties and putting patients before paperwork.

Events


On Wednesday, July 29, Aimed Alliance will offer a webinar through HR.com titled “Copay Accumulators Part 2: A Legal and Regulatory Update, Data Trends, and Patient Spotlight.” During the webinar, speakers will highlight recent changes to the laws and regulations involving copay accumulator programs, explain how copay accumulator programs can adversely affect employees’ health, identify recent trends, and suggest recommendations for employers considering selecting health plans with copay accumulator programs. To sign up for the webinar, click here.
 
Aimed Alliance representatives will also be presenting at the following conferences in August:
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