NHeLP and The AIDS Institute Complaint to HHS Re HIV/AIDS Discrimination by FL

Executive Summary

Complaint to the Office for Civil Rights at the U.S. Department of Health and Human Services (HHS OCR) requesting that federal officials take action to end discrimination targeting people living with HIV/AIDS.The complaint alleges four Florida insurers (CoventryOne, Cigna, Humana and Preferred Medical) are violating the Affordable Care Act (ACA) and federal civil rights laws by structuring their prescription drug policies in a way that discourages people with HIV/AIDS from selecting their plans.

ADMINISTRATIVE COMPLAINT
Office for Civil Rights, U.S. Department of Health and Human Services
200 Independence Avenue, S.W., Room 509F
Washington, D.C. 20201
Timothy Noonan, Regional Manager, Region IV
Office for Civil Rights, U.S. Department of Health and Human Services
Sam Nunn Atlanta Federal Center, Suite 16T70
61 Forsyth Street, S.W.
Atlanta, GA 30303-8909
RE:  DISCRIMINATORY PHARMACY BENEFITS DESIGN IN SELECT QUALIFIED HEALTH PLANS OFFERED IN FLORIDA
COMPLAINANTS
The AIDS Institute
17 Davis Boulevard, Suite 403
Tampa, FL 33606
The National Health Law Program
1444 I Street NW Suite 1105
Washington, DC 20005
The AIDS Institute (TAI) is a national nonprofit AIDS agency focusing on public policy, research, advocacy, and education. It began as a grass roots community mobilization effort in the mid1980s and was incorporated in 1992. TAI has offices in Tampa, Florida and Washington, DC, and has been a leading voice both in Florida and nationally in ensuring people with HIV and other chronic diseases, such as hepatitis, have access to quality and affordable health care.
Founded in 1969, the National Health Law Program (NHeLP) protects and advances the health rights of low-income and underserved individuals. It is the oldest non-profit of its kind. NHeLP advocates, educates, and litigates at the federal and state levels to further its mission.
DEFENDANTS
Coventry Health Care, Inc., which offers Qualified Health Plans (QHPs) in Florida under the name CoventryOne, is wholly owned by Aetna, which reported over $47 billion in revenue for 2013.
Cigna is headquartered in Bloomfield, Connecticut, reporting $32 billion in revenue for 2013.
Humana is headquartered in Louisville, Kentucky, reporting over $41 billion in revenue for 2013.
Preferred Medical is headquartered in Coral Gables, Florida. Its 2013 annual report is not available.
JURISDICTION
This complaint is filed pursuant to Section 1557 of the Patient Protection and Affordable Care Act (ACA), codified at 42 U.S.C. § 18116. Section 1557 prohibits federal health programs, activities, and contracts of insurance sold through the health insurance Marketplaces from discriminating against individuals living with disabilities, including HIV and AIDS. The HHS Office for Civil Rights (OCR) has primary responsibility for ensuring compliance with Section 1557 through investigations and enforcement action. Although the HHS OCR has primary oversight over Section 1557, the Department of Justice (DOJ) has coordinating responsibility pursuant to Executive Order 12250.
PRELIMINARY STATEMENT
Under the ACA, health insurers may no longer discriminate on the basis of disability. Section 1557 and other ACA provisions prohibit discriminatory health insurance practices, including plan benefit designs which discourage enrollment of persons with significant health needs, including people living with HIV and AIDS.
The AIDS Institute conducted an analysis (available here; hard copy attached) of the prescription drug formularies and cost structure for all silver-level Qualified Health Plans (QHPs) operating in Florida. The analysis found that, of the 36 plans reviewed, the QHPs offered by CoventryOne, Cigna, Humana, and Preferred Medical charge inordinately high co-payments and co-insurance for medications used in the treatment of HIV and AIDS.  Other plans available through the Marketplace offer HIV/AIDS medications in a range of tiers and cost sharing structures.
  • CoventryOne places all HIV drugs on Tier 5, including generics (with a 40% co-insurance after a $1,000 Rx deductible) and most require prior authorization.
  • Cigna places all HIV drugs on Tier 5, including generics (in some plans with a 40% co-insurance after deductible ranging from $0 to $2,750).
  • Humana places all HIV drugs on Tier 5, including generics (with a 50% co-insurance after a $1,500 Rx deductible).
  • Preferred Medical places all HIV drugs on a Specialty Tier, including generics, and requires 40% co-insurance. It is unclear which require prior authorization.
The QHP drug benefits offered by CoventryOne, Cigna, Humana, and Preferred Medical impose overly restrictive utilization management which unduly limits access to commonly used HIV/AIDS medications. Moreover, by placing all HIV/AIDS medications, including generics, on the highest cost-sharing tier, CoventryOne, Cigna, Humana, and Preferred Medical discourage people living with HIV and AIDS from enrolling in those health plans – a practice which unlawfully discriminates on the basis of disability.
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