“HIV is a complex disease that presents and progresses differently in different patients,” Keeton said. “In order to give doctors and pateints the highest likelihood for treatment success, it is imperative that they have access to the one regimen of the six promulgated by the US Department of Health Services that will work best for their specific treatment plan. The Silver-level Marketplace plan offered by Anthem Blue Cross Blue Shield in Wisconsin does not cover three quarters of the sixteen drugs needed to complete these regimens. These regimens are effective at increasing treatment adherence, a critical factor leading to long-term disease management and something many patients struggle with,” Keeton said.

In the Complaint, ARCW and CHLPI have identified several additional ways that HIV patients would be negatively impacted by Anthem Blue Cross Blue Shield’s silver-level plan in the Marketplace. By not covering the vast majority of medications recommended for treatment, Anthem’s Marketplace plan effectively discourages people with HIV from enrolling in their plan, while simultaneoualsy providing adequate coverage of other chronic illnesses. Such restriction of access to life-saving medications is in violation of Sections 1311 and 1557 of the ACA.

“CHLPI and ARCW are using the OCR process to shine a light on discrimination occurring under the cloak of supposedly neutral insurance plan benefit design. When an insurer requires chronically ill patients to pay a disproportionate share of the cost of medication it violates federal law” says Robert Greenwald, CHLPI’s Faculty Director and Clinical Professor of Law at Harvard Law School. “These are landmark Complaints that will benefit everyone looking to receive equitable, comprehensive health care through the Marketplaces by helping to define anti- discrimination law at a time when insurers are covering less and less.”

The campaign is designed to effectuate the major new civil rights framework created by the regulations implementing the anti-discrimination provisions of Section 1557 of the ACA. ARCW anticipates that its OCR complaint will help define and set the standard for how these new civil rights protections are applied in health insurance markets. Recent news of insurance providers choosing to exit the health insurance Marketplaces across the country make the Complaints and related efforts to enforce the health care rights of people living with HIV more important. CHLPI has increasingly seen insurers who offer reasonable patient cost sharing leave the Marketplaces, arguing that they cannot afford to compete with insurers practicing discriminatory plan design. This leaves individuals at the mercy of insurers charging high copayments or coinsurance for life- saving medications, and de-stablizes the Marketplaces by reducing the number of insurers offering plans.

While recent news of insurers departing from the Marketplaces may make regulators feel reluctant to push the remaining insurers toward offering more equitable, non-discriminatory coverage, failure to enforce the non-discrimination regulations could have serious long-term implications on the success of the ACA. Greenwald says “Ultimately, our hope is to work to help stabilize the marketplace—encouraging more insurers who have experience with Medicaid managed care or community hospitals to provide coverage, and ensuring that strong regulations are in place that provide a level playing field to people relying on the Marketplaces.”

In addition to the Complaint filed by ARCW, CHLPI has partnered with other state partners, including AIDS Alabama, AIDS Research Consortium of Atlanta, AIDS Foundation of Chicago, CrescentCare (formerly the NO/AIDS Task Force) in Louisiana, Nashville CARES, and AIDS Law Project of Pennsylvania. CHLPI and its state partners have filed complaints against the following insurers: