New York’s One-Limb-per-Lifetime Restriction Attacked With Collaborative Effort
July 2015 Issue
It's not often that a focused, intensive effort to change a bad public policy results in progress in as quickly as three months, but that is exactly what happened in New York State. In short, New York's notorious restriction-the so-called one-limb-per-lifetime cap that limited beneficiaries to one prosthesis per amputated limb, per lifetime-in its benchmark health benefits plan sold in the private insurance market was recently amended to include coverage for prosthetic repairs and replacements. While additional work must be done to solidify this development, the attention the issue garnered and the pace at which New York chose to modify the policy is stunning.
Responding to pressure from individuals with amputations, prosthetists, and New York politicians, Donna Frescatore, the executive director of New York's health insurance exchange, ordered the elimination of a restriction that limited adults with amputations in the state of New York to only one prosthesis per limb in their lifetimes. In a letter to Assemblyman Kevin Cahill (D), chairman of the New York State Assembly's Insurance Committee, Frescatore confirmed that "New York's benchmark plan will be modified starting on January 1, 2016, to include coverage for the cost of repair and replacement of external prosthetic devices for both adults and children. The [New York] State of Health 2016 Health Plan Invitation will be amended to include this coverage requirement for the individual and small group marketplaces starting with benefit year 2016."
New York's decision reverses a coverage limitation that clearly violates the Affordable Care Act (ACA), but the reason cited by the state for changing this coverage is equally important. The executive director of the New York insurance marketplace acknowledged that a recent federal regulation requiring coverage for rehabilitative and habilitative devices includes prosthetic limb coverage. It is this regulation that caused New York to cover prosthetic limb care, including repairs and replacements. The ruling and the reason for it created a precedent that advocates can use in other states to help establish robust O&P coverage. The rationale behind the policy change provides advocates a key argument against restrictions in other states where prosthetics have been excluded from coverage entirely in plans offered through those insurance exchanges.
Advocacy Can Yield Real Results
The policy reversal in New York is a case study in how a coalition of highly motivated individuals and organizations can work together to achieve positive policy outcomes. Dan Bastian, CP, a New York practitioner who has a transfemoral amputation, met with representatives from the National Association for the Advancement of Orthotics and Prosthetics (NAAOP) in February to discuss an initiative to eliminate the one-limb-per-lifetime limitation. While Bastian built bipartisan relationships with legislators over the course of multiple trips to Albany, the state capital, another New York resident, David McGill, JD, who is also president of NAAOP and a prosthesis user, and I spearheaded the advocacy strategy.
The Amputee Coalition, which has had an advocacy presence in New York for insurance fairness for amputees legislation for some time, provided key data used to demonstrate the cost-effectiveness of reasonable prosthetic coverage as well as support from amputee consumers. The Coalition was joined by New York State-based advocacy groups that focus on healthcare reform. These groups included New Yorkers for Accessible Health Coverage and the Center for Independence of the Disabled. High-profile prosthetic users, such as John D. Kemp, Esq., president and CEO of The Viscardi Center, who has quadrilateral amputations, and Marshall J. Cohen, Esq., a former chairman of the board of the Amputee Coalition, also assisted in the effort.
A targeted strategy was agreed upon to seek immediate administrative relief for the 2016 plan year. It was agreed initially that a permanent legislative fix would be much more difficult and could take much longer than a more narrow administrative solution.
Bastian enlisted the help of a PR firm to establish an online petition and website (www.onelimbforlife.com), and as of this writing, nearly 16,000 people have signed the petition in support of efforts to eliminate the state's prosthetic benefits restriction. The PR firm also helped attract print and television media coverage, with stories in Newsday, on local network TV news (including major network coverage in New York City), and online publications. The New York CBS affiliate and TV News 12 Long Island both ran features on the issue, which can be viewed at www.oandp.com/link/314 and www.oandp.com/link/315, respectively.
Building Political Pressure to Change Policy
While the media began to take notice of this egregious restriction in prosthetic coverage, Bastian took time away from his O&P practice to travel to Albany and raise awareness about, and get press for, the elimination of this insurance limitation. McGill joined Bastian in multiple interactions with legislators and government officials as NAAOP provided strategy, counsel, and research, while also drafting numerous written documents provided to these individuals as part of the effort.
A key milestone was reached when the chairman of the New York State Senate Health Committee and the chairmen of the New York State Assembly Insurance Committee and Health Committee, joined by other legislators from both sides of the aisle, wrote letters to Frescatore raising concerns about the one-limb-per-lifetime limitation and requesting that the restriction be removed from the marketplace and the essential health benefits package in the state. The strong bipartisan support from the chairmen of these committees placed pressure on the marketplace leadership to revise its coverage policy. The office of Governor Andrew Cuomo (D) also became interested in resolving this problem, sending encouraging signals to change this policy.
These letters from New York legislators to the insurance marketplace leadership raised legal challenges developed by NAAOP, including the following lines of argument:
- The one-limb-per-lifetime policy was not "equal to the typical employer plan," which is the standard for essential health benefits coverage under the ACA, at the time the policy was adopted in 2013.1 In fact, only one major plan in the state, the Oxford plan, contained this restriction. Therefore, selecting the Oxford plan as the state's benchmark did not reflect the typical employer plan.
- This restrictive coverage policy conflicts with requirements under the ACA to cover "rehabilitative and habilitative services and devices" as part of essential health benefits.2 Federal regulations published in February 2015 clarify this benefit and emphasize the requirement to provide "devices" as well as services.
- The ACA prohibits the use of annual and lifetime caps in benefits. While this provision is limited to monetary caps (e.g., a $2,000 lifetime limit), the one-limb-per-lifetime restriction is tantamount to a prohibited annual or lifetime maximum. It must, therefore, be removed from the benchmark plan.
- The ACA also prohibits discrimination in benefit design based on age and disability.3 The one-limb-per-lifetime restriction runs afoul of both of these provisions. Because the limitation does not apply to children but does apply to adults, this provision discriminates based on age. And because the only individuals impacted by this policy are individuals with amputations, this amounts to a condition-based distinction in coverage and, therefore, discriminates based on disability status (i.e., limb loss).
Legal Reasons Boosted by Commonsense Arguments
In addition to these legal challenges to the one-limb-per-lifetime policy, the letters from legislators to the state's insurance marketplace included clinical arguments to make the case for covering more than one prosthesis per lifetime. For instance, the letters included information about how prosthetic care entails an intimate clinician-patient relationship, as well as how a prosthesis is ultimately a mechanical device that requires maintenance, repair, and ultimately replacement to ensure proper and safe function. Similarly, the letters detailed that as individuals with limb loss age, they experience changes in their clinical conditions that require new prosthetic solutions to keep them independent and functional.
The letters also included arguments that appropriate prosthetic care speeds recovery for those with limb loss, improves their mobility, and facilitates their return to work. Revising this coverage limitation is not just the right thing to do clinically; it is also likely to lead to long-term cost savings by promoting more active, healthy, and independent lifestyles.
NAAOP also used data provided by the Amputee Coalition from independently commissioned studies from multiple states to establish that the cost to New York State would be negligible. The information showed that monthly premiums would increase from as little as $0.24 to a maximum of only $4.20 per member per year.4 Other data showed that in New York in 2012, there were 455 upper-limb amputations, 1,526 transtibial amputations, and 1,326 transfemoral amputations. Importantly, only a fraction of these individuals receive prosthetic coverage each year from an ACA plan.
Finally, advocacy efforts to rescind the one-limb-per-lifetime policy framed this provision as an anomaly and unusually punitive. For instance, it was clear from research about the New York insurance market that as a result of the benchmark plan having this limitation, virtually every other exchange plan in New York State adopted the same restriction. It became the "typical employer plan" only because New York officials failed to remove this unreasonable and discriminatory restriction when they selected and revised their benchmark benefits plan. In addition, research further indicated that this limitation is one of the most restrictive prosthetic coverage policies of any exchange plan in the United States and that New York stands alone as having a one-limb-per-lifetime policy.
For all of these reasons, the New York marketplace was strongly urged to change its policy for the 2016 plan year.
Success (and More Work for Lasting Change)
With the growing pressure from both political parties, the Assembly, and the Senate, and with continued interest from the governor and media, Frescatore ultimately concluded that new federal regulations compelled her to change the 2016 Health Plan Invitation to insurers to include coverage of prosthetic repairs and replacements-a huge and swift victory.
However, the insurance lobby is a strong one, both at the federal and the state levels. In the days following the New York announcement, language from the 2016 Health Plan Invitation emerged that still included the one-limb-per-lifetime policy but added in coverage for "repairs and replacements." This creates some degree of ambiguity that NAAOP, Bastian, the Amputee Coalition, and the remaining advocacy groups continue to address. Not only have these efforts included clarification of the Health Plan Invitation's language, but the advocacy agenda has spread to a legislative approach to lock in this victory.
The legislative approach began with renewed interest in a dormant prosthetic insurance fairness for amputees bill that the Amputee Coalition was responsible for getting introduced over a decade ago. Other legislative alternatives have recently been floated, including language offered by the insurance industry which, not surprisingly, is restrictive in its coverage requirements. A number of New York Senate and Assembly committees are examining these legislative alternatives, and the advocates continue to press for the most favorable language possible.
Peter W. Thomas, JD, is general counsel for the National Association for the Advancement of Orthotics and Prosthetics.
- See 42 U.S. Code §18022(b)(2)(A), available at www.law.cornell.edu/uscode/text/42/18022.
- See 45 C.F.R. §156.110, available at www.ecfr.gov/cgi-bin/text-idx?SID=90b8209cfd567f80a48c649a30709768&node=sp45.1.156.b&rgn=div.
- See 42 U.S.C. §18022(b)(4)(B), available at www.law.cornell.edu/uscode/text/42/18022.
- Evaluation of Senate Bill 931: Mandated Coverage of Prosthetic Devices, Joint Legislative Audit and Review Commission of the Virginia General Assembly, pg. 18-9.