Vol 23, 2014 Annals of Health Law 45
THE ACA AND PEOPLE LIVING WITH HIV/AIDS
needs of PLWHA at some stages of the implementation. Recently, HHS
requested that the Institute of Medicine issue a report on the question of
what should qualify as essential in a health insurance plan. 137 This report
nowhere addresses the health care needs of PLWHA. 138 Such omissions are
especially troubling in light of the fact that the administration itself has
recognized the country’s need for a strong, concerted effort to improve HIV
care. 139 Without explicit requirements on private insurers, they will
continue to offer inadequate coverage through ( 1) wrongful denials of
claims, 140 ( 2) costly specialty drug tiers,141 and ( 3) the categorization of
treatment as experimental or medically unnecessary.142
1. History of Wrongful Denials
Employers and the private insurance industry have a long history of cost
avoidance through wrongful denials of claims.143 For PLWHA, denials
often take the form of complete recessions from a provider’s plan once the
insured is diagnosed.144 For example, in Mitchell, Jr. v. Fortis Ins. Co., the
Supreme Court of South Carolina confronted the case of an insurance
provider that sought out and removed an HIV positive insured from its
available at http://www.gao.gov/assets/90/89926.pdf (noting substantial variation in the
regulation of small group plans, including provisions affecting pre-existing conditions,
guaranteed issue, and premium rate restrictions).
137. See INST. OF MED., ESSEN TIAL HEALTH BENEFITS: BALANCING COVERAGE AND COST
138. See id. HHS’s new proposed rule defining EHBs for newly eligible Medicaid
beneficiaries raises serious concerns as well. See Amy Killelea et al., Nat’l Alliance of State
& Territorial AIDS Dirs, Update: New Medicaid Essential Health Benefits Proposed Rule
and What it Means for People Living with HIV and Hepatitis (Feb. 11, 2013),
and-what-it-means-for-people-living-with-hiv-and-hepatitis/. The proposed rule both
increases the amount that states may charge for “non-emergency use” of emergency rooms
to $8, and increases the amount of cost sharing states may charge to people with income
below 150% of the federal poverty level. Id.
139. See supra Part II. B.
140. See infra Part IV. A. 1.
141. See infra Part IV. A. 2.
142. See infra Part IV. A. 3.
143. See, e.g., Mitchell, Jr. v. Fortis Ins. Co., 686 S.E.2d 176, 190 (S. C. 2009); Mayeaux
v. La. Health Serv. & Indem. Co., 376 F.3d 420, 423 (5th Cir. 2004); Sylvia A. Law, Do We
Still Need a Federal Patients’ Bill of Rights?, 3 YALE J. HEALTH POL’Y, L. & ETHICS 1, 2–3
(2003). Incidences in which people suffer as a result of delay caused by a medical service
provider’s need to check in with managed care organizations are also common. Id. at 10.
144. See Murray Waas, Insurer Targeted HIV Patients to Drop Coverage (Mar. 17,
(discussing the insurance provider practice of rescission and how it can be utilized to
wrongfully deny coverage).