12 Attorneys General File Lawsuit Over Association Health Plans

Health Payer Intelligence reports:

A dozen state attorneys general are suing the Department of Labor (DOL) over the expansion of association health plan (AHPs).

In the suit, which was filed in the DC District Court of Appeals, the officials argue that broad availability of AHPs violates the consumer protections included in the Affordable Care Act.

The DOL’s final rule allows contractors and individuals in similar industries to enroll in AHPs that operate outside of the ACA’s enforceable policies.

The ACA enforces the coverage of essential health benefits, a single risk pool, and anti-discrimination protections for members with pre-existing conditions. AHPs are not required to provide these protections and can discriminate against certain high-risk enrollees.

The ACA also provides protections to help individuals and small businesses provide competitive health plan options. AHPs could use discriminatory practices against small businesses and individuals to contain costs and spending, the AGs argued.

“Congress also enacted additional reforms specific to the individual and small group market, based on the fact that health insurance markets for individuals and small businesses were much more prone to abuse, including discrimination in pricing and benefits,” the AGs explained. “Because of those abuses, prior to the ACA’s enactment, far fewer small employers offered health insurance to their employees, and individuals faced substantial discrimination in (or were effectively priced out of) the insurance market.”

The attorneys general also argue that President Trump’s executive order to expand AHP sales and the DOL’s final rule are politically motivated attempts to dismantle the ACA.

The AGs said that neither the President nor the DOL provided enough detail about how AHPs would be regulated or monitored. The lack of oversight indicates that AHP expansion is part of a larger effort to weaken current ACA provisions and consumer protections, the AGs argued.

The attorneys general cited public stakeholder comments that warned about the consumer implications of both policies.

“The American Cancer Society warned, for example, ‘The proposed rule could seriously erode the affordable comprehensive coverage now available in most states’ individual and small group markets that is so critical to cancer patients and survivors,’” the AGs said.

“The American Heart Association and American Stroke Association noted: ‘One of the most troubling aspects of association health plans is that they do not have to comply with [essential health benefit] coverage requirements that are the core of the ACA. This is deeply concerning because patients with [cardiovascular disease] rely on these coverage requirements for access to medically necessary care.’”

The final rule could also impact how states regulate their insurance markets, and possibly increase some states’ premiums, the AGs warned.

AHPs could create revenue losses for states that rely on taxes and administrative fees for individual and small group ACA health plans. Many state and local health plans also rely on premium subsidies to help offset beneficiary costs.

The AGs argue that if more individuals move to an AHP, then ACA health plans will earn less premium assistance.

The AGs believe that many sick and vulnerable beneficiaries that are barred from AHP enrollment will be unable to afford more expensive health plan options.

“An employee with a chronic condition, or high health needs, not covered by his/her AHP would now have no reasonable way to access the coverage they need,” the AGs said.

“The employee’s options would be: purchase a plan in the marketplace without financial assistance, an unaffordable option if the employee had income low enough to qualify for a tax credit in the first place; enroll in the AHP even if the AHP does not cover services she relies on, such as maternity care, mental health care, or prescription drugs, or remain uninsured.”

The AGs also informed DOL Secretary Alex Acosta that Congress has a history of rejecting legislation that expands the sale of AHPs.

Since 2005, Congress has voted against policies and similar DOL final rules that expand consumer access to AHPs.

The AGs are seeking a court ruling the declares the DOL’s final rule to be arbitrary and contrary to current federal laws. The AGs are hoping that the federal court strikes down the rule before it goes into effect in August of 2018.