During open enrollment, consumers will need help recognizing plans that comply with the Affordable Care Act

Joseph Burns

About Joseph Burns

Joseph Burns (@jburns18), a Massachusetts-based independent journalist, is AHCJ’s topic leader on health insurance. He welcomes questions and suggestions on insurance resources and tip sheets at joseph@healthjournalism.org.

questions1Journalists covering open enrollment for the Affordable Care Act this year will need to separate fact from fiction about the law and about coverage for pre-existing conditions.

As we saw on Tuesday, the U.S. Supreme Court heard oral arguments on whether it should strike down the individual mandate and the entire ACA in a case we covered in a blog post on Monday. One of the big issues in any debate involving the ACA is coverage for Americans who have pre-existing conditions. During the coronavirus pandemic, this issue is even more important than it was in previous years because more than 10 million cases have been reported, according to The New York Times. Many of those Americans now have a pre-existing condition they did not have last year.

In its coverage of the court’s oral arguments, The Washington Post reported that a majority of justices appeared willing to uphold most of the ACA and that Chief Justice John Roberts suggested the court should not strike down the law after Congress has failed to do so.

While a decision is not expected until spring, if the law is struck down, protections for patients with pre-existing conditions under the ACA will end. But even if the law remains in place, journalists will need to explain how getting coverage for these conditions will be challenging because consumers can be misled into signing up for a health insurance plan that does not cover them.

Some of the nation’s best-known health insurers sell policies that comply with the ACA and policies that do not comply with the ACA. During open enrollment, this distinction is important for consumers seeking comprehensive insurance plans that meet the ACA’s requirements to cover all essential health benefits.

For coverage that starts on Jan. 1, enrollment is open on www.healthcare.gov through Dec. 15 although it runs longer in 10 states and the District of Columbia. Louise Norris, an insurance broker who writes for HealthInsurance.org, has a good explanation of those dates.

Last month, Jeremy B. Merrill and Marshall Allen reported for ProPublica that “Trumpcare” ads have flooded Facebook and Google. Yet “Trumpcare” does not exist.

Merrill and Allen explained that the ACA requires traditional health insurance plans to provide “minimal essential coverage,” including payment for care of patients with pre-existing conditions and coverage of preventive screening visits at no cost and mental health, substance abuse and maternity care, among other benefits.

But less-conventional plans do not need to meet these requirements, they added. Such unconventional plans are called short-term (or short-term, limited duration insurance (STLDI) plans) and they are called fixed-indemnity or accident-only plans. Some are designed to cover consumers who have specific diseases.

But these plans do not comply with the rules of the ACA that require comprehensive coverage. Earlier this year, we covered the problems some consumers face after buying STLDI here and here.

STLDI, fixed-indemnity, accident-only, and specific-disease plans may be attractive to consumers because they are less expensive than ACA-compliant plans because they are not comprehensive. “A purchaser would need to read the fine print to know what they did or did not cover,” Merrill and Allen wrote.

The problem for consumers is that reputable health insurance companies, such as UnitedHealthcare and others, offer these unconventional plans. Critics of non-ACA-compliant coverage say these plans are “typically big moneymakers for the companies that can leave patients with unexpected medical bills,” Merrill and Allen reported. The limitations of these plans often are not explained in advertisements or in insurance brokers’ sales presentations, they noted.

On the same day that ProPublica its article on these plans, Reed Abelson reported in The New York Times that New York State insurance regulators filed complaints against companies that “aggressively marketed and sold” non-ACA-compliant insurance products to people who were uninsured. The companies deceived consumers into paying hundreds of dollars per month for what they were led to believe was comprehensive health coverage, she wrote, adding patients who had these polices were often left with thousands of dollars in unpaid medical bills.

As Abelson, Merrill and Allen point out, health insurance brokers have been known to mislead consumers. Their findings were confirmed in a report in August from the Government Accountability Office. For that report, “Private Health Coverage: Results of Covert Testing for Selected Offerings,” the GAO had undercover agents assess the marketing and sales practices of insurance sales representatives who sell health plans that are exempt from ACA rules, such as STLDI, limited benefit, health care sharing ministry and association health plans, the report said.

During calls with insurance sales staff, the undercover agents evaluated the use of deceptive sales practices, such as making false statements about coverage and saying they were seeking coverage and had pre-existing conditions, such as diabetes.

Some insurance company sales representatives appropriately explained plans that were exempt from the ACA’s comprehensive-coverage rules while others engaged in potentially deceptive marketing practices that misrepresented or omitted information about the insurance policies they were selling, the GAO reported.

Of 31 covert tests that the GAO conducted, the agency found that in eight of those tests, the sales representatives engaged in potentially deceptive practices, such as claiming the pre-existing condition was covered when plan documents said those conditions were not covered, the report said. Those cases were referred to the Federal Trade Commission.

The fact that health insurers sell both ACA-compliant and non-ACA compliant plans on their websites is a problem for consumers. The advice journalists can offer is the consumers need to be aware of the differences and make sure they get comprehensive coverage. One way to ensure that consumers can get ACA-compliant plans is to shop on the marketplace at www.healthcare.gov.

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