United States: Checkups For The Healthcare System: AGs’ Consumer Protection Role Under The Affordable Care Act

The American healthcare market is in the process of an unprecedented transformation, driven largely by the enactment in 2010 of the Patient Protection and Affordable Care Act ("ACA", also sometimes called "Obamacare"). Now that the ACA has been implemented, and open enrollment is over, millions of people now have health insurance who previously did not. Health insurance has always been confusing, from the terminology used to the benefits provided; it is likely to be even more confusing for consumers who have never been insured. AGs are recognizing that their duty as chief consumer advocates for their citizens gives them a key role in ensuring that the evolution of the healthcare market does not come at the expense of consumers.

AGs have already been engaged on the ACA. Twenty-eight states, most represented by their AGs, challenged the constitutionality of the law and its implementation, while 12 AGs filed an amicus brief in the Supreme Court supporting the law. After the Supreme Court upheld the law in 2012, the states turned to the herculean tasks of implementation—i.e., setting up exchanges (or relying on the federal exchange), deciding whether to expand Medicaid, approving plans, and later dealing with roll-out problems—in which state insurance commissioners, exchange offices, governors, and legislatures assumed leading roles.

AGs are again coming to the forefront, this time in their capacity as consumer protection advocates for the millions of new consumers on health insurers' rolls. Signs of consumer issues related to increased access to healthcare are already starting to appear. For example, as we noted in our review of the top ten consumer complaints received by AG offices in 2013, problems related to healthcare appeared on the top ten lists of several states.

A timely panel hosted by the Democratic Attorneys General Association (DAGA) on May 8 in Seattle explored the challenges and responsibilities AGs will face with respect to the ACA. The discussion, moderated by Arkansas AG Dustin McDaniel, featured Brenda Gleason, a healthcare consultant to the Rhode Island health insurance exchange; Myrl Weinburg, CEO of the National Health Council, an umbrella group of patient advocacy organizations; and Joe Miller, General Counsel of America's Health Insurance Plans, which represents health insurance companies.

AG McDaniel framed the discussion by stressing that all AGs have consumer protection responsibilities and a duty to make sure constituents receive the best services with minimal complications. Gleason and Weinberg agreed and noted that AGs' primary consumer priorities at this point should be to ensure transparency so that consumers are able to find information about health plans before they purchase them, and ensure that consumers are able to appeal and resolve disputes quickly and effectively. They noted that:

  • AGs will both receive consumer complaints directly and are responsible for counseling other state agencies, such as the Insurance Commissioner or Insurance Exchange Office, in handling such issues.
  • Information regarding many aspects of health plans—including who is in a provider network, what medicines are covered on formularies, and what consumers' co-pay responsibilities are—is often difficult to find, a problem exacerbated by the concern that 12 million new consumers of healthcare policies may be unfamiliar with how health insurance works.
  • The sheer scale of so many new consumers and the structure of new exchanges already have resulted in patients' difficulties contacting insurers. For example, Blue Cross Blue Shield received over one million calls in early January alone, a dramatic increase that required it to entirely restructure how it receives consumer complaints.
  • The panelists analogized AGs ACA role to their enforcement of state "lemon laws," which empower AGs to ensure retailers make adequate disclosures and to ensure that consumers have recourse for their complaints against businesses in other industries. AGs have a similar role to play in ensuring that consumers who purchase insurance know whether their providers will be covered, what formularies will apply to their medicines, how much they will co-pay, and what rights they have to appeal or dispute issues that arise.

Speaking for health insurers, Miller recognized the validity of such concerns but urged AGs to view the implementation of the ACA as an evolving process. He noted:

  • These first years will require cooperation and good faith, as the complexity of the new system will certainly result in stumbling blocks and learning curves, and there is a natural tension between coverage and costs that will require complex efforts to balance.
  • Beyond their regulatory and enforcement responsibilities, AGs also will continue to play a role in advocating state authority over healthcare against federal preemption. For example, the federal government is considering a national standard for the sufficiency of provider networks, a province traditionally of state insurance regulations.
  • AGs generally know their local health markets much better than the federal government and have a critical opportunity to ensure that competition in health services remains fair, such as scrutinizing hospital and other provider mergers and acquisitions.

Looking to the future, the panelists agreed "where the states lead, the federal government will follow." Because the federal government has no central authority tasked with receiving and reviewing consumer complaints, the states by default will play the role in consumer protection and enforcement for the foreseeable future. In addition, the influx of new health insurance consumers is merely the beginning. In addition to new consumers, those who until now have received health insurance chosen by their employers may avail themselves of the opportunity to choose their own plans through the exchanges. These consumers will demand even more transparency from insurers, and their participation will likely bring future complaints to state authorities, especially AGs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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