Health Reform WK-EDGE Coverage exclusion for hearing loss treatments not disability discrimination under ACA
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Monday, September 24, 2018

Coverage exclusion for hearing loss treatments not disability discrimination under ACA

By Leah S. Poniatowski, J.D.

Health care plans provided by the Kaiser Foundation Health Plan of Washington and other carriers did not violate the Patient Protection and Affordable Care Act’s (ACA) (P.L. 111-148) protection against disability discrimination because the plan exclusion for hearing loss or hearing care applied to all insureds, a federal court in Washington ruled, dismissing the insureds’ claim (Schmitt v. Kaiser Foundation Health Plan of Washington, September 14, 2018, Lasnik, R.).

A group of Washington residents had been diagnosed with hearing loss but treatment for that condition had been excluded by their health care plan. The plan, however, provided coverage for cochlear implants. The insureds asserted that they were disabled by their hearing loss and because the policy excluded care for this condition, they were discriminated against because of their disability status in violation of the ACA (section 1557 18116). The Kaiser Foundation and other carriers filed the present motion to dismiss.

Discrimination prohibition. Under the ACA, health care programs receiving federal financial assistance cannot exclude individuals from "participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity" with respect to section 504 of the Rehabilitation Act (29 U.S.C. §794). Section 504 of the Rehabilitation Act prohibits discrimination on the basis of disability. Additionally, the regulations implementing the ACA also protect disabled individuals (45 C.F.R. § 92.207(a), (b)).

However, not all medical services or treatments are mandated by Congress. Coverage was mandated for ten essential health benefits, which do not include hearing aids or hearing loss services. Accordingly, insurers are not mandated to cover or provide every type of treatment for all medical conditions. HHS also has explained that there is a distinction between what benefits the insurer provides and the requirement that those benefits be provided without discrimination.

Disability discrimination. The court observed that the policy at issue excludes coverage for hearing loss treatment independent of an insured’s disability status, but will cover cochlear implants which assists insureds who have disabling hearing loss. Thus, there was no plausible inference of disability discrimination because all insureds were excluded coverage for hearing loss services. The court explained that the logical conclusion of the insureds’ argument would "automatically [convert] every healthcare policy into a top end, gold-level plan," which was not the goal of the ACA or supporting law. Therefore, the insurer’s motion to dismiss was granted.

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