By Anna Meghan Nunn
Intern from the University of North Carolina at Wilmington, Department of Public and International Affairs
Hundreds of patients living with HIV/AIDS in Louisiana and North Dakota are facing uncertain futures in their search for health insurance through the Marketplace Exchange under the Affordable Care Act (ACA). At the end of last year, Blue Cross and Blue Shield of Louisiana announced that they would no longer be accepting insurance premium payments from third party payers. On the surface, this decision might not seem like such a big deal, but digging deeper it reveals the potentially troubling reality for patients living with HIV/AIDS receiving supports and services under the Ryan White CARE Act, which in this scenario would be one of those third party payers.
Reuters reported in its recent article, "Exclusive: AIDS Patients in Obamacare Limbo as Insurers Reject Checks," that Blue Cross and Blue Shield of Louisiana spokesman John Maginnis told them, "In no event will coverage be provided to any subscriber, as of March 1, 2014, unless the premiums are paid by the subscriber (or a relative) unless otherwise required by law."
Another report, "More Obamacare Insurers in Louisiana Reject AIDS Patients," published online by News Daily quoted Maginnis as saying that the policy is, "a safeguard against…patient steering and other fraudulent activity," adding that it knows "from experience that there are people who want to game the system." Two smaller insurance companies (The Louisiana Health Cooperative and Vantage Health Plan) in Louisiana followed suit days later, as did the Blue Cross and Blue Shield of North Dakota.
This statement from the Blue Cross and Blue Shield of Louisiana comes on the heels of a November announcement by the Centers for Medicare and Medicaid Services (CMS) in which they warned, "hospitals, other healthcare providers, and other commercial entities" that it has "significant concerns" about their accepting premium payments from third party payers, citing the risk of fraud. The interesting thing about this November statement is that it somewhat contradicts an earlier statement made by the CMS in September 2013, whereby they informed insurers that Ryan White funds "may be used to cover the cost of private health insurance premiums, deductibles, and co-payments" for ACA insurance plans.
The ambiguity of these conflicting messages allowed Blue Cross and Blue Shield of Louisiana to justify their rejection of the third party payments from Ryan White. In an attempt to clarify their position, CMS released a new statement on February 7th, in which spokeswoman Tasha Bradley told Reuters, "Ryan White grantees may use funds to pay for premiums on behalf of eligible enrollees in Marketplace plans, when it is cost-effective for the Ryan White program." Reuters maintains that this means that having people with HIV/AIDS enroll in insurance under Obamacare could save the government money. Bradley went on to say that, "the third-party payer guidance CMS released (in November) does not apply to Ryan White programs."
The drama didn't end there!
According to The Advocate in its recent post, "Blue Cross Decision Affects Some HIV/AIDS Enrollees," CMS further refined this point, explaining that the November statement was in response to isolated cases of hospital staff attempting to enroll it’s chronic emergency room patients (its most expensive patients) in online Marketplace Exchange plans. Unfortunately this clarification came too late; Louisiana insurance companies and Blue Cross and Blue Shield of North Dakota had already began rejecting checks and informing previously enrolled patients that they will be dropped from their plans.
Many healthcare advocates are accusing these two Blue Plans and the other smaller insurance companies of attempting to side step the ACA mandate that patients cannot be denied access to care based on pre-existing conditions. Since HIV/AIDS is a chronic condition that tends to encompass some of the most expensive policy holders, some advocates are calling it blatant discrimination. These companies are now being accused of avoiding adverse selection, a term used to define the practice of insurance companies attracting patients with chronic conditions and expensive care (Reuters, 02/08/14).
The Advocate quotes Ged Kinslea, communications director for the AIDS Healthcare Foundation in Los Angeles as saying, "It looks as if Blue Cross is deliberately misunderstanding CMS…it seems like they are trying to weasel out of covering high-acuity patients." Several recent articles have noted that this maneuver flies directly in the face of the fundamental intent of the ACA, to expand comprehensive and affordable healthcare to all citizens, especially the most economically and physically vulnerable.
Noel Twilbeck, Chief Executive Officer of the New Orleans AIDS Task Force, claims that there are currently 19,000 people in Louisiana living with HIV/AIDS and that NO/AIDS has registered approximately 200 people in Marketplace Exchange insurance plans, but that number may be even higher. Twilbeck says that it is unclear how many people will ultimately be effected by this recent development.
This is an especially pertinent issue for Louisiana residents as the state has chosen not to accept the Medicaid Eligibility expansion offered under the ACA. This means that many patients living with HIV/AIDS who earn too much to qualify for Medicaid but not enough to qualify for federal subsidies for insurance plans will fall into a coverage gap.
The concern is best summarized by Twilbeck, "Our biggest fear is that if we stand by and do nothing, and Blue Cross gets away with this, a lot of others will try to do the same" (The Advocate, 02/20/14).
So, what is being done to remedy this situation?
According Lambda Legal's blog, the nonprofit has filed an administrative complaint with the U.S. Department of Health and Human Services Office of Civil Rights against Blue Cross and Blue Shield of Louisiana. Scott Schoettes, HIV Project Director at Lambda Legal, said:
"The situation is urgent. Refusing federal funds that provide life-saving care to people living with HIV could potentially affect thousands of low-income Louisiana residents, and if BCBS does not recognize the error of its ways and reverse course, the only logical explanation for its conduct is discrimination. This strategy keeps people living with HIV off BCBS's insurance rolls, and smacks of the sordid legacy of years of insurance industry practices designed to deny coverage to those living with HIV."
Days later, Lambda Legal filed complaints against the other two insurance companies, The Louisiana Health Cooperative and Vantage Health Plan. The NO/AIDS joined them in filing (The Advocate, 02/20/14). Lambda Legal contends that they sent a written request to Blue Cross and Blue Shield of Louisiana on January 27th with regard to this new policy. They requested a response by January 30, 2014, but state that they have not received a response as of February 10th.
One of the defendants was obviously paying attention, evidenced by the following Tweet: "@LambdaLegal @VOCALNYAction @Vantage_Health is currently accepting 3rd party payments."
That hasn't stopped some powerful players inside the Beltway. Senator Mary Landrieu (D-LA) is putting pressure on Blue Cross and Blue Shield of Louisiana. According to Jessica Stone, Senator Landrieu’s health staffer, "BCBS LA told me their decision was not due to the CMS guidance or any confusion (as we thought before) but was in fact due to adverse selection concerns. I have also recently learned North Dakota’s BCBS plan has implemented the same policy" (Reuters, 02/08/14). Reuters insists that Stone declined to further discuss the details of her interactions between Senator Landrieu’s office and Blue Cross and Blue Shield of Louisiana.
Local Baton Rouge, LA news station WAFB-9 published a story last week, claiming to have received an email from CMS which read:
"Federal rules do not prevent the use of Ryan White funds to pay for health care plans. In fact, CMS issued guidance last week making this clear and encouraging issuers and Marketplaces to accept such payments. Given the importance of access to care for people with HIV/AIDS, CMS is considering amending those the rules to require issuers to accept these payments."
In response Blue Cross and Blue Shield of Louisiana spokesman John Maginnis emailed WAFB stating, "we are reviewing and considering this new information to decide whether it is helpful in addressing our concerns about taking third-party payments" (WAFB-9, 02/10/14).
Blue Cross and Blue Shield of Louisiana maintains that they, "welcome all Louisiana residents who chose Blue Cross and Blue Shield of Louisiana" (News Daily, 02/13/14). Unfortunately Louisiana residents who chose Blue Cross and Blue Shield of Louisiana, and who are dependent on Ryan White funding for premium payment assistance are not able to participate in the insurance plans.
According to CMS, Blue Cross and Blue Shield of North Dakota is the only other carrier refusing to accept third-party payments, so far. Blue Cross and Blue Shield of North Dakota spokeswoman Andrea Dinneen recently stated that they are, "currently reviewing its eligibility policies with respect to recipients of Ryan White Program funding" (Reuters, 02/08/14).
But a recent Tweet by Blue Cross and Blue Shield of North Dakota's was less ambiguous, stating they are enforcing North Dakota’s century code that forbids them accepting third party payments.
Healthcare advocates and HIV/AIDS advocacy groups are hopeful that this issue will be favorably resolved in the coming weeks. In the meantime, they advise patients living with HIV/AIDS effected by this policy in Louisiana and North Dakota to reach out to local AIDS resource groups for guidance. Other groups are asking patients who are effected to put pressure on their legislators and insurance companies by participating in an online petition that are currently being circulated by Change.org.