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ACA Discrimination Against People With HIV/AIDS Will Not Be Tolerated

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Last week marked a grim anniversary. Thirty-three years ago, the U.S. Centers for Disease Control and Prevention published their first report of a rare form of pneumonia that was killing gay men. Those terrifying early days of the AIDS plague were recently brought to life in the new HBO production of The Normal Heart, based on Larry Kramer's 1985 play. After more than three decades and millions of lives lost, Kramer's depiction of the rage-inspiring refusal by public officials to take action against AIDS may seem to some like a relic from a painful past.

The HIV/AIDS advocacy and protest movement that Kramer launched fought back against the indifference and inaction that fueled the fires of the global AIDS pandemic, and got results. The U.S. has now committed significant resources to the research and treatment of HIV/AIDS, both at home and overseas. The bad old days when people with HIV/AIDS were fired from their jobs and turned away from healthcare providers seem long gone. Or so we hoped.

It turns out that discrimination against people with HIV/AIDS is alive and well in 2014.

A recent review of silver-level health insurance plans offered in the Florida Health Insurance Marketplace found that four insurers -- CoventryOne (wholly owned by Aetna), Cigna, Humana, and Preferred Medical -- placed every drug used to treat HIV/AIDS in the most expensive drug payment tier.

Tiering prescription drugs has become a common practice by health insurers. "Tiering" determines the cost of the drug to the consumer, as well as other conditions on receipt of the drug, like deductibles and pre-approval requirements. There are no standards or regulations for deciding which drug belongs on a specific tier. Basically, health insurers can place any drug on any tier -- which is exactly what these four Florida insurers have done.

For example, CoventryOne's plans on the Marketplace offer six tiers: 1A, Lower Cost Preferred Generic Drugs; 1, Preferred Generic Drugs; 2, Preferred Generic Drugs; 3, Non-preferred Brand/Generic Drugs; 4, Preferred Specialty Drugs; and 5, Non-Preferred Specialty Drugs.

Tier 1 drugs under the CoventryOne plan cost the customer as little as $5. Tier 5 drugs, on the other hand, require prior approval and a 40 percent coinsurance payment after first meeting a $1,000 deductible -- and there are quantity limits.

CoventryOne places every anti-retroviral drug used in HIV treatment, including generics, in Tier 5.

Cigna, Humana and Preferred Medical have similar tiers and also place generic HIV medications in their highest cost-sharing tiers. These tiering designations add up to significant money for patients.

This is neither normal nor necessary, and none of the other silver plans in Florida even approach this pricing. BlueCross places all but one anti-retroviral drug in Tiers 1 and 2 (the other is in Tier 3). Aetna places generic versions of 7 HIV drugs in Tier 1. Ambetter has placed most HIV drugs on Tiers 1 and 2, with two in Tier 4.

So if you are living with HIV or AIDS, which plan would you choose? CoventryOne, Cigna, Humana and Preferred Medical want to make sure their plans are the least attractive option for persons living with HIV/AIDS. And you can see why -- if you have HIV, you are more likely to need to use health services, including prescription drugs and cost the insurer more.

This practice is dangerous. As with many medical conditions, barriers to care and treatment interruptions can have serious health consequences, particularly for persons with HIV/AIDS, such as the development of resistance to the very drugs that should be helping suppress the virus.

The practice is also illegal. The Affordable Care Act, the law that created the Marketplace in which these plans are offered, prohibits insurers from discriminating against people with disabilities, people living with HIV/AIDS, and those with pre-existing conditions or other significant health needs.

Congress anticipated that health insurers might try to get around the requirement that they provide coverage without regard to a person's pre-existing conditions or health needs. That's why it wrote into the Affordable Care Act, not only the requirement that insurance plans not openly discriminate, but also that they could not offer "benefit designs that have the effect of discouraging enrollment ... by individuals with significant health needs."

The law also provides a way to challenge this discriminatory pricing. Last month, the National Health Law Program and The AIDS Institute filed an administrative complaint with the Office of Civil Rights at the U.S. Department of Health and Human Services asking the Obama Administration to investigate the plans, stop the illegal behavior, and seek penalties.

An administrative process may not be as riveting as a Larry Kramer play or a massive AIDS protest, but anyone who cares about health care and access to treatment for those living with HIV and AIDS should be watching this case closely.