Discrimination on the Basis of Health Status in Health Insurance: “Market-Norm or Necessity”?

By Kate Greenwood
[Cross-posted at Health Reform Watch]

In recent months, advocates have alleged that discrimination on the basis of health status in health insurance continues, notwithstanding the Affordable Care Act’s attempts to level the playing field for people with chronic health conditions. How the government and industry should respond to the allegations is not clear, however, in part because what constitutes “discrimination” is not clear in this context. As Jessica Roberts has noted, there is an “intrinsic tension between an antidiscrimination framework and the practices of the private, for-profit health-insurance industry.” This tension makes it difficult to pinpoint where permissible cost-consciousness ends and impermissible discrimination begins.

As has been widely reported, at the end of May, the National Health Law Program, along with the Tampa-based organization The AIDS Institute, filed an administrative complaint with the United States Department of Health and Human Services’ Office of Civil Rights in which they allege that four qualified health plans offered through the federally-facilitated marketplace in Florida discriminate by “charg[ing] inordinately high co-payments and co-insurance for medications used in the treatment of HIV and AIDS.” The complainants go on to allege that because “[o]ther issuers vary tiering or place HIV drugs on more affordable tiers,” “the practice of placing all anti-retrovirals on the highest tier is not a market-norm or necessity.”

The complaint’s emphasis on whether the plans’ actions reflect a “market-norm or necessity” tracks the Centers for Medicare & Medicaid Services’ 2015 Letter to Issuers in the Federally-Facilitated Marketplaces, in which CMS writes that “to ensure nondiscrimination in [qualified health plan ("QHP")] benefit design, CMS will perform an outlier analysis on QHP cost sharing (e.g., co-payments and co-insurance) as part of the QHP certification application process.” CMS goes on to specify that, with regard to prescription drugs, a plan will be considered an “outlier” if it has “an unusually large number of drugs subject to prior authorization and/or step therapy requirements in a particular category and class.”

As Sarah Rosenbaum has noted, “CMS does not provide a review methodology or define what is ‘unusually large’.” Even if it had, what if subjecting a large number of drugs to prior authorization or step therapy requirements did not make a plan unusual? Would that mean that doing so was not “discrimination”? Continue reading

Accomodating Racism in Hospitals

The Hurley Medical Center in Flint, Michigan is being sued for accommodating the request made by a parent that no African Americans tend to his newborn. The father, who allegedly sported a swastika tattoo, alerted a nurse that blacks were not to care for his baby.

To comply with the father’s request, nurse Tonya Battle, who was caring for the child in the Neonatal Intensive Care Unit (NICU) of the hospital was removed or reassigned from tending to the child.  A news video reporting on the incident can be found here. Battle is now suing the hospital.  According to her lawsuit, hospital staff complied with the father’s demand, posting a note next to the baby’s name on the assignment clipboard: “No African American nurse to take care of baby.”

Nurse Battle’s lawsuit claims that she was deeply shocked and offended–she’s worked for at the hospital for 25 years.  Professor Kimani Paul-Emile writes that such requests–based on race or ethnicity–are not unusual at U.S. hospitals and medical clinics.  See her article, Patients’ Racial Preferences and the Medical Culture of Accommodation, which is published in the U.C.L.A. Law Review here.  However, such instances of using racial preferences in the medical setting raise questions about the permissibility of such practices–not only as a legal matter, but also as matters of health and bioethics.  Some patients believe that the quality of their care is enhanced when provided by someone represented by their ethnic group; some even fear that their healthcare is compromised when delivered by medical staff outside of their ethnic group.  Should the law tolerate these forms of discrimination?  What about if racial perceptions have a positive placebo effect?  Post a comment.