My previous post warning that copay coupons may not count toward High Deductible Health Plan deductibles and out of pocket expenses is by far the most read and commented on entry in this blog. The obvious question is this: do affected patients have a legal remedy? The short answer is: I do not know. Unfortunately, I could not represent anyone in such a legal dispute due the ethical and business concerns that would arise from my representation of health insurance companies on unrelated matters. Nor could I participate as a plaintiff because, fortunately, my benefits plan has not yet adopted this strategy. But I can offer some thoughts on how such a legal challenge might proceed.
Keep in mind that this is not legal advice. It is simply some high level legal information that will not apply to your specific and unique circumstances.
The Main Argument: Breach of Contract regarding Copay Coupons
One commenter, Donna Busching, was already on the right track:
I called UHC, they said that was their policy starting 1/1/2018. I wanted to know where benefits said that. She couldn’t find it in online benefits. She said check you written benefits. (I don’t have them currently).
The contract between you and your insurance company governs your medical and prescription benefits. This is typically a one-to-two hundred page document that you probably have never read. You should obtain a copy of it from your employer’s HR/Benefits department. Once you have it, check the summary of benefits to ensure that prescription costs count toward your deductible, and then skip to the Prescription Benefits section and read carefully for any mention of copay coupons. Your goal is to not find language regarding copay coupons.
Your next step (or your first step if you are not comfortable scanning the contract yourself), is to involve a lawyer. You should seek out a well respected local lawyer with experience litigating against health insurance companies. While it is unlikely that he or she could take your case, even if it has merit [due simply to the economics], it could be a first step toward a referral to a firm with the resources to organize a class action and absorb the enormous litigation costs. In my opinion, the issue is a textbook example of an appropriate class action because, as your comments show, thousands to millions of consumers are affected.
Unfortunately, I cannot recommend any lawyers or law firms. I did, however, run the following search on Bing which resulted in a few relevant results: “class action lawsuits health insurance deductible copay assistance.”
If a lawyer or law firm were to take your case, the legal claim would be for breach of contract. The deductible shields the insurance carrier from the first several thousand dollars of claims. If there is no contract language to the contrary, it should not matter whether that obligation is satisfied by the member, a copay assistance coupon, or a loan from grandmother, as long as the patient meets his or her obligation of shielding the
Reports began to surface in 2014 that Humana, Cigna, and others were placing single-tablet HIV medications–the current standard of care demonstrated to be superior than “cocktails” of many individual pills, in the highest formulary tiers. This tier placement greatly increased the out of pocket costs to patients seeking the standard of care to which they were entitled. HIV patients argued that they were being unfairly discriminated against in access to medication, which was explicitly outlawed under the Affordable Care Act (Obamacare) for insurance plans sold on marketplace exchanges.
After the lawsuits were filed (but before any trial or ruling on the merits), the insurance companies relented and agreed to change their practices. Humana lowered its copay for the highest tier HIV medicines from 50% to 10%, and Cigna and Coventry reached similar agreements. While these examples are not legally binding, they do suggest that the plaintiffs’ underlying complaints had merit.
If you are affected by this issue, I think it is worth consulting with a lawyer who has experience litigating against health insurance companies. Come to your meeting armed with your full insurance contract and the details of your specific circumstances (your diagnosis, your required medications, the costs, whether this has been a problem before, what attempts you have already made to resolve the issue with the insurance company, etc.). Most attorneys will offer an initial consultation for free. Most respectable attorneys will, if they believe your claim has merit, take your case or refer you to another law firm with the resources and experience to handle your claim.
Who knows: You could start the next class action lawsuit on this issue.
*As I mentioned before, nothing in this article should be relied on as legal advice. I am providing information that may help you in when seeking your own attorney to discuss the specific details of your case.