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In a September 29 opinion in HIV and Hepatitis Policy Institute et al. v. U.S. Department of Health and Human Services et al., the District Court for the District of Columbia struck down the regulation allowing the use of copay accumulators in the exchanges. In addition to the HIV and Hepatitis Policy Institute, plaintiffs included the Diabetes Leadership Council, the Diabetes Patient Advocacy Coalition, and three individual patients harmed by their insurers’ use of copay accumulators. Back in February, CSRO supported the plaintiffs by joining the Aimed Alliance’s amicus brief, so the ruling came as welcome news.
It's important to note that the recent court opinion does not outlaw the use of copay accumulators across the board. Rather, the judge struck down the 2021 Notice of Benefit and Payment Parameters (NBPP) that allowed insurers to use copay accumulator programs in the Affordable Care Act exchanges, but the ruling left open the possibility for the agency to reissue a proposal on this topic in the future. For now, insurers must abide by the 2020 NBPP, which allowed the use of accumulators only for branded drugs with low-cost therapeutic alternatives.
The opinion left some question as to the continued need for the HELP Copays Act, which would prohibit the use of copay accumulators in the exchanges – a policy that CSRO strongly supports. The legislation remains necessary for two main reasons:
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As noted above, the court ruling leaves open the door for the agency to readdress this issue in the future in a way that would allow for the use of copay accumulators in the exchanges, and the HELP Copays Act would firmly close that door.
- The legislation has another component that would close the essential health benefits loophole, by which some insurers designate expensive specialty medications as “non-essential health benefits.” This issue was not addressed by the court ruling and remains in need of a legislative solution.
CSRO will continue to push for advancement of the HELP Copays Act, and has recently joined a letter by the All Copays Count Coalition, urging the Administration not to appeal the recent ruling. Further updates will be shared as appropriate.
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