Monitoring and 

Enforcing the 

Affordable Care Act:

A Roadmap for People with 

Disabilities 

National Council on Disability

February 2, 2016
Letter of Transmittal

February 2, 2016

President Barack Obama

The White House

1600 Pennsylvania Avenue, NW

Washington, DC 20500

Dear Mr. President:

The National Council on Disability (NCD) is pleased to submit Monitoring and Enforcing the 

Affordable Care Act (ACA) for People with Disabilities. This document is the final report in a 

series resulting from NCD’s cooperative agreement with the Urban Institute in NCD’s study 

called “The Affordable Care Act and What It Means for People with Disabilities.”

NCD is an independent federal agency, composed of nine members appointed by the 

President and the U.S. Congress. The purpose of NCD is to promote policies, programs, 

practices, and procedures that guarantee equal opportunity for all individuals with disabilities, 

and to empower individuals with disabilities to achieve economic self-sufficiency, independent 

living, and inclusion and integration into all aspects of society.

The current report recognizes some of the steps the U.S. Department of Health and Human 

Services Centers for Medicare and Medicaid has taken to assist members of the public 

in navigating the relatively new law and its proposed rules. The report includes illustrative 

questions in each chapter to raise awareness about potential options and topics to consider 

after the rule becomes final. Specifically, this report:

• Describes some of the key legal safeguards in ACA and its implementing regulations that 

can assist people with disabilities obtain necessary health care and support services;

• Identifies the entities bound by each statutory and regulatory duty and gives clear 

examples of the kinds of actions that may be required or forbidden;

• Discusses disparities and discrimination in terms of selected legal requirements applicable in these contexts:

❍ General health plan issues involving disparities and discrimination, which affect 

multiple systems of coverage; and

❍ Essential health benefits, which ACA requires of many different systems of public 

and private health coverage;

• Addresses the operation of Health Insurance Marketplaces with regard to enrollment 

and coverage through qualified health plans by people with disabilities; and

• Highlights Medicaid expansion and application/renewal procedures.

National Council on Disability

An independent federal agency making recommendations to the President and Congress 

to enhance the quality of life for all Americans with disabilities and their families.

1331 F Street, NW ■ Suite 850 ■ Washington, DC 20004

202-272-2004 Voice ■ 202-272-2074 TTY ■ 202-272-2022 Fax ■ www.ncd.gov
We urge the White House and Congress to engage critical stakeholders, including people living 

with disabilities, in ongoing and future dialogue opportunities and in taking strategic actions to 

improve health care across our nation.

Sincerely,

Clyde Terry

Chair

(The same letter of transmittal was sent to the President Pro Tempore of the U.S. Senate, the Speaker of the U.S. 

House of Representatives, and the Director of the Office of Management and Budget.)
National Council on Disability Members and Staff

Members

Clyde Terry, Chair

Katherine D. Seelman, Co-Vice Chair

Royal Walker, Jr., Co-Vice Chair

Gary Blumenthal

Bob Brown

Lt. Col. Daniel Gade

Janice Lehrer-Stein

Benro T. Ogunyipe

Neil Romano

Lynnae Ruttledge

Staff

Rebecca Cokley, Executive Director

Phoebe Ball, Legislative Affairs Specialist

Stacey S. Brown, Staff Assistant

Lawrence Carter-Long, Public Affairs Specialist

Joan M. Durocher, General Counsel & Director of Policy

Lisa Grubb, Management Analyst

Geraldine-Drake Hawkins, Ph.D., Senior Policy Analyst

Amy Nicholas, Attorney Advisor

Anne Sommers, Director of Legislative Affairs & Outreach

Ana Torres-Davis, Attorney Advisor

Monitoring and Enforcing the Affordable Care Act for People with Disabilities
Acknowledgments

The National Council on Disability (NCD) wishes to express its appreciation to Stan Dorn, J.D., Senior 

Fellow at the Urban Institute’s Health Policy Center, who worked collaboratively with NCD to develop 

the framework and conducted the research and writing for this report. We also thank Brenda Spillman 

and Jane Wishner of the Urban Institute for comments on an earlier draft and Regan Considine of the 

Urban Institute for research support on the project.

National Council on Disability
Acronym Glossary

ABP Medicaid Alternative Benefit Plans (often for newly eligible, low-income adults 

in expansion states)

ACA Patient Protection and Affordable Care Act

ADA The Americans with Disabilities Act

APTC Advance premium tax credit

CFC Community First Choice, an option for Medicaid coverage of HCBS

CHIP Children’s Health Insurance Program

CMS Centers for Medicare and Medicaid Services

EHBs Essential health benefits

EPSDT Early and periodic screening, diagnosis, and treatment, the Medicaid benefit for 

children

ESI Employer-sponsored insurance

FDA The Food and Drug Administration

FEHB Federal employees health benefit program

FMAP Federal medical assistance percentage, the percentage of Medicaid or CHIP 

costs paid by the federal government

FPL Federal poverty level

HCBS Home- and community-based services

HHS U.S. Department of Health and Human Services

HMO Health maintenance organization (a form of managed care)

IAP Insurance affordability program (typically either Medicaid, CHIP, or federal 

subsidies for Marketplace coverage)

IHS Indian Health Service

LTSS Long-term services and supports

MAGI Modified adjusted gross income

M/SUD Mental health and substance use disorders

OCR HHS Office of Civil Rights 

PHS Act Public Health Service Act

P&T committee Pharmacy and therapeutics committee

QHP Qualified health plan (offered in a health insurance Marketplace)

SAMHSA The Substance Abuse and Mental Health Services Administration

SBM State-based marketplace

SSI Supplemental Security Income

USP United States Pharmacopeia

Monitoring and Enforcing the Affordable Care Act for People with Disabilities
National Council on Disability
Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Chapter 1. Disparities and Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ACA Section 1557 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Entities Forbidden from Disability-Based Discrimination . . . . . . . . . . . 7

General Duties of Nondiscrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

More Specific Duties of Nondiscrimination . . . . . . . . . . . . . . . . . . . . . . 11

Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ACA Section 4302 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Chapter 2. Health Plans Furnishing Essential Health Benefits . . . . . . . . . . . . . . . . . . . 15

Health Plans Required to Cover EHBs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

The Structure of EHBs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Legal Duties Involving Plans That Provide EHB Coverage . . . . . . . . . . . . . 17

Departing from the Amount, Duration, and Scope 

of Benchmark Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Habilitative Services and Devices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Prescription Drugs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Treatment of Mental Health and Substance Use Disorders . . . . . . . . 22

Discriminatory Benefit Design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Accountable Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Health Plans and Their Sponsoring Insurers . . . . . . . . . . . . . . . . . . . . 27

Government Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Chapter 3. Marketplaces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Marketplace Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

QHPs in the Marketplace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 1
Chapter 4. Medicaid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Expanded Coverage for Low-Income Adults . . . . . . . . . . . . . . . . . . . . . . . . 35

Alternative Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Obtaining Services That Go beyond the ABP . . . . . . . . . . . . . . . . . . . . 37

Application and Renewal Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Medicaid Eligibility above the Federal Poverty Level . . . . . . . . . . . . . 41

Medicaid Administrative Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

2 National Council on Disability
T

his report describes some of the key 

legal safeguards in the Patient Protection 

and Affordable Care Act (ACA) and its 

implementing regulations that can help people 

with disabilities obtain essential care and supports. 

Our goal is to flag issues for monitoring by the 

disability community, nationally and in states, to 

ensure that people with disabilities fully share 

in ACA’s promised gains while avoiding potential 

risks posed by ACA. We describe applicable legal 

duties, identify the entities responsible for fulfilling 

those responsibilities, and, in some cases, explore 

potential avenues for redress.

We address issues in the following categories:

■ Disparities and discrimination, which can 

affect multiple systems of coverage;

■ Essential health benefits (EHBs), which ACA 

requires of many different systems of public 

and private health coverage;

■ The operation of Health Insurance 

Marketplaces (sometimes called 

“Marketplaces” or “Exchanges”), including 

the enrollment of consumers and the 

provision of coverage through qualified 

health plans (QHPs);

■ Medicaid1

—

❍ Coverage of low-income adults with 

incomes up to 138 percent of the federal 

poverty level (FPL); and

❍ Procedural requirements involving 

Medicaid applications and renewals.

Several introductory caveats are important. 

This roadmap is not intended as legal advice or 

comprehensive legal analysis. Rather, it seeks 

to provide a starting point for people with 

disabilities and their advocates, facilitating the 

process of spotting issues that may warrant 

further work.

Also, much of our analysis is necessarily 

provisional. Many key ACA provisions, statutory 

and regulatory, have not received judicial 

interpretation. Moreover, many important 

regulations remain subject to revision.

This is the second “roadmap” that analyzes 

ACA’s impact on people with disabilities. 

Our earlier roadmap, “Implementing the 

Affordable Care Act: A Roadmap for People 

with Disabilities,” identified key policy choices 

facing federal and state officials and explored 

how particular approaches to those choices 

could help or hurt people with disabilities. Here, 

the focus is different. This roadmap charts legal 

standards, already in place, that apply to privateand public-sector entities. The other roadmap 

sought to inform decisions by disability-rights 

organizations and people with disabilities about 

whether and how to educate decision-makers 

about the impact of key policy choices on people 

with disabilities. This roadmap raises issues that 

Introduction

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 3
the disability community can track to make sure 

that people with disabilities are receiving the 

services and supports they are guaranteed under 

federal law.

To help in that process, this report follows 

each discussion of the legal rights of people 

with disabilities under ACA with a checklist of 

possible monitoring questions. These checklists 

are illustrative, not all-inclusive. They seek to 

prompt further ideas about how to track ACA 

implementation to ensure that the legislation’s 

promises are realized for people with disabilities. 

Most are asked from the standpoint of statebased disability-rights organizations, but some 

are relevant at the federal level.

4 National Council on Disability
Monitoring and Enforcing the Affordable Care Act for People with Disabilities 5
A policy or practice with discriminatory effects can violate prohibitions, 

whether or not there is evidence of discriminatory intent.

[

6 National Council on Disability
I

n this chapter, we discuss two ACA provisions 

involving disability-based disparities and 

discrimination: Sections 1557 and 4302. Later, 

we explore antidiscrimination protections that 

apply more narrowly, such as to insurers required 

to furnish essential health benefits.

ACA Section 1557

Section 1557 prohibits discrimination based on 

disability (and other grounds, not discussed here) 

by entities receiving federal health care funding:

“[A]n individual shall not, on the ground 

prohibited by . . . section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be 

excluded from participation in, be denied 

the benefits of, or be subjected to discrimination under, any health program or activity, 

any part of which is receiving Federal financial assistance, including credits, subsidies, 

or contracts of insurance, or under any 

program or activity that is administered by 

an Executive Agency or any entity established under this title (or amendments). The 

enforcement mechanisms provided for and 

available under such . . . section 504 . . . 

shall apply for purposes of violations of this 

subsection.”

Federal agencies viewed this statute as effective 

upon enactment. The Office for Civil Rights 

(OCR) of the U.S. Department of Health and 

Human Services (HHS) thus began accepting 

and processing administrative complaints about 

alleged violations. On September 8, 2015, OCR 

published proposed regulations fleshing out 

the meaning of Section 1557.2 Explored below 

are some of the proposed rule’s key features, 

which define: (1) the organizations and people 

forbidden from discrimination; (2) the general 

scope of prohibited discrimination; (3) specific 

types of discrimination that are barred; and (4) 

enforcement. The final rule may change from the 

proposed regulations.

One final preliminary comment is important. 

Section 1557 is one of many anti-discrimination 

prohibitions in ACA. Later we discuss others, 

some of which forbid conduct that is also within 

the sweep of Section 1557’s prohibitions.

Entities Forbidden from Disability-Based 

Discrimination

Entities in three categories are subject to the 

proposed rule’s antidiscrimination prohibitions.

First, every health program or activity, any part 

of which receives federal financial assistance, is 

barred from discriminating. Such entities include 

hospitals, health clinics, community health centers, 

group health plans, health insurance issuers, 

health plans, physician practices, nursing facilities, 

residential or community-based treatment facilities, 

and state agencies administering Medicaid or 

Chapter 1. Disparities and Discrimination

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 7
the Children’s Health Insurance Program (CHIP).3

In its proposed regulation, OCR indicates that 

it expects almost all physicians to be subject 

to antidiscrimination 

prohibitions.

If one part of an 

entity that is principally 

engaged in providing 

or administering health 

services or health 

insurance coverage 

receives federal funding, 

the entire entity is 

forbidden to discriminate. 

For example, if an 

insurance company 

offers a QHP that 

serves people who use 

federal subsidies to buy 

Marketplace coverage, 

the prohibition of discrimination applies to all 

of the insurance company’s health plans and 

products, including employer coverage for which 

the insurer serves as third-party administrator.

Federal financial assistance under the 

proposed rule includes grants, contracts, loans, 

reimbursement, and any other funding from the 

Health Resources and 

Services Administration, 

the Substance Abuse 

and Mental Health 

Services Administration 

(SAMHSA), the Centers 

for Disease Control 

and Prevention, the 

Centers for Medicare 

& Medicaid Services 

(CMS), and the Indian 

Health Service (IHS), 

among other federal 

agencies. It also 

includes HHS funding 

that individuals use 

to purchase coverage 

or care—for example, tax credits and other 

subsidies that low- and moderate-income 

consumers use to buy QHPs offered in the 

Marketplace.

Illustrative Monitoring Questions

■ Which health care providers in my area (doctors, medical groups, hospitals, clinics, 

providers of long-term services and supports, and so forth) receive federal funds and so 

are bound by Section 1557? This includes organizations and individuals paid by Medicare, 

Medicaid, grants for health centers, or other federal grants or programs (e.g., Ryan White 

funding for people with HIV-AIDS; SAMHSA funding of programs that treat mental health 

and substance use disorders, IHS, etc.) Note: although the Federal Employees Health 

Benefits (FEHB) program is not mentioned in the proposed rule—presumably because it 

is not administered by HHS—by the terms of the statute, entities participating in FEHB, 

including providers and insurers, appear subject to Section1557.

Covered entities must provide 

the public with notices that 

contain specified information, 

including that the entity does 

not discriminate; that it provides 

appropriate interpreters and 

auxiliary aids and services, free of 

charge ...; the entity’s grievance 

procedures; and how consumers 

can obtain auxiliary aids and 

services, file a grievance, or file a 

complaint with OCR.

8 National Council on Disability
Second, entities that were created by ACA 

Title I to administer health programs and 

activities are forbidden to discriminate. Such 

entities include health insurance Marketplaces 

and their subcontractors, including Navigator 

programs that help consumers enroll and select 

coverage.

The third and final set of covered entities 

consists of health programs and activities 

administered by HHS. This includes Medicare, 

federally facilitated Marketplaces, and federally 

conducted health research. Note that the statute 

itself addresses all federal agencies, not just 

those within HHS; future regulations may specify 

federal duties that go beyond HHS.

General Duties of Nondiscrimination

Covered entities must ensure that people 

are not denied the full benefit of health 

programs and activities because of disability. 

Disability is defined as under Section 504 of 

the Rehabilitation Act and the Americans with 

Disabilities Act (ADA)—namely, “a physical or 

mental impairment that substantially limits one 

or more major life activities of such individual; a 

record of such an impairment; or being regarded 

as having such an impairment.” The proposed 

rule also bars discrimination based on association 

with a person with a disability. For example, the 

regulatory preamble explains that “a physician 

could not deny a medical appointment to a 

Illustrative Monitoring Questions (continued)

■ Which health insurers that receive federal funds and operate in my area offer health plans 

that receive or benefit from federal funds? All of an insurance company’s health plans 

(including employers’ self-funded plans administered by the company) are bound by 

Section 1557 if the insurer receives federal funds, such as through Medicare, Medicaid, 

CHIP, Marketplace coverage, or other programs.

■ Which state and federal agencies serving people in my area operate a health program 

or activity that receives federal funding and so is bound by Section 1557? This includes 

state-based and federally facilitated Marketplaces, state and federal Medicaid and CHIP 

agencies, and other state or federal programs.

■ Who contracts with those state and federal agencies to operate health programs and 

activities? Contractors barred from discrimination may include Navigators, companies 

operating websites for the Marketplace or Medicaid, and other contractors helping with 

operations (e.g., eligibility determination, information technology, call-center-operation, 

public education campaigns, and so forth).

Note: Monitoring questions for Section 1557 reflect a proposed, not a final, rule. Disability organizations 

will need to track changes made in final regulations. However, the questions touch on factual issues 

that are likely to remain important.

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 9
patient who is an individual without a disability 

on the basis that the patient will be accompanied 

by a family member who is deaf and who will 

require a sign language interpreter.”

The proposed regulations require covered 

entities to “make reasonable modifications 

in policies, practices, or procedures when 

necessary to avoid discrimination on the basis of 

disability.” However, such modifications are not 

required if the covered entity can “demonstrate 

that the modification would fundamentally alter 

the nature of the health program or activity.”

If the covered entity has 15 or more 

employees, it must appoint a coordinator who 

is responsible for ensuring compliance with 

antidiscrimination rules. It must also establish 

grievance procedures, with appropriate due 

process protections, through which complaints of 

discrimination are addressed.

Regardless of size, a covered entity 

must provide the federal government with 

assurances of compliance with Section 1557 

and implementing regulations in order to obtain 

federal financial assistance. Examples of entities 

required to make such assurances include statebased Marketplaces and insurers offering QHPs. 

Covered entities must also provide the public 

with notices that contain specified information, 

including that the entity does not discriminate; 

that it provides appropriate interpreters and 

auxiliary aids and services, free of charge, to 

ensure effective communication; the entity’s 

grievance procedures; and how consumers can 

obtain auxiliary aids and services, file a grievance, 

Illustrative Monitoring Questions

In my state or locality, ask for each provider, insurer, public agency, or contractor subject to 

antidiscrimination prohibitions:

■ Is it engaging in any practices that have the effect of denying people with disabilities the 

full benefit of a health care program or activity?

■ Does it discriminate against a patient or client without a disability who is associated with a 

person with a disability? For example, does it fail to give family members with disabilities 

the full benefit of the health care program or activity (such as by not providing signlanguage interpreters for deaf family members)?

■ Could the entity make reasonable modifications in policies, practices, or procedures that 

would prevent disability-based discrimination?

■ Has the entity provided public notice of nondiscrimination? Does that notice meet all 

regulatory requirements for content and distribution? Is the entity using OCR’s multilingual 

model notices (or an adaptation of such notices)?

■ Does the entity have 15 or more employees? If so, has it appointed a coordinator to 

address antidiscrimination rules; and has it established grievance procedures with 

appropriate due process protections?

10 National Council on Disability
or file a complaint with OCR. Such notices must 

be included in significant public communications 

(like patient handbooks) and posted in 

conspicuous locations both in the covered entity’s 

physical space and its website home page. OCR 

will publish multilingual versions of model notices. 

More Specific Duties of 

Nondiscrimination

As a general rule, accessibility requirements for 

entities subject to the proposed rule replicate 

those in Title II of the ADA, which applies to state 

and local government entities, rather than Title III, 

which addresses places of public accommodation 

and commercial facilities. Accessibility involves, 

among other things, making offices and facilities 

physically accessible to people with disabilities. 

The proposed rule thus requires that when 

covered entities engage in new construction or 

alter existing facilities, they must comply with 

2010 ADA standards for accessible design. OCR 

also announced that, once the U.S. Access 

Board’s standards for medical diagnostic 

equipment are finalized,4 OCR intends to issue 

regulations or policies that will require covered 

entities to meet those standards.

Covered entities are similarly required to 

use effective and accessible communications 

channels. This includes providing auxiliary aids 

and services, as under ADA regulations. The 

proposed Section 1557 rule defines such aids and 

services to include the following:

(1) Qualified interpreters on-site or through 

video remote interpreting (VRI) services, as 

defined in 28 CFR 35.104, 36.303(b); note 

takers; real-time computer-aided transcription services; written materials; exchange of 

written notes; telephone handset amplifiers; 

assistive listening devices; assistive listening systems; telephones compatible with 

hearing aids; closed caption decoders; open 

and closed captioning, including real-time 

captioning; voice, text, and video-based telecommunication products and systems, text 

telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; 

accessible electronic and information technology; or other effective methods of making 

aurally delivered information available to individuals who are deaf or hard of hearing;

(2) Qualified readers; taped texts; audio 

recordings; Braille materials and displays; 

screen reader software; magnification software; optical readers; secondary auditory 

programs; large print materials; accessible 

electronic and information technology; or 

other effective methods of making visually 

delivered materials available to individuals 

who are blind or have low vision;

(3) Acquisition or modification of equipment and devices; and

(4) Other similar services and actions.5

Accessibility duties also include “electronic and 

information technology.” One example requires 

full accessibility of Marketplace websites:

A Health Insurance Marketplace creating a 

Web site for application for health insurance 

coverage must ensure that individuals with 

disabilities have an equal opportunity to 

benefit from the Web site’s tool that allows 

comparison of health insurance coverage 

options, quick determination of eligibility, 

and facilitation of timely access to health 

insurance coverage by making its new Web 

site accessible to individuals who are blind 

or who have low vision.6

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 11
The obligation to make electronic and information 

technology fully accessible to people with 

disabilities goes beyond websites, however. 

According to the regulatory preamble:

[OCR] decided to include an explicit accessibility requirement that applies to all of a 

covered entity’s electronic and information 

technology. The term electronic and information technology includes, but is not limited 

to, telecommunications products (such as 

telephones), information kiosks and transaction machines, [I]nternet sites, multimedia, 

and office equipment such as copiers and 

fax machines.7

A covered entity is not required to make its 

health programs and activities provided through 

electronic and information technology accessible 

if that would “impose undue financial and 

administrative burdens or would result in a 

fundamental alteration in the nature of the health 

program or activity.” If such an undue burden 

exists, the covered entity must use other methods 

to convey the information that avoid discrimination.

A final set of specific duties involves health 

insurers. The proposed rule prohibits denying, 

cancelling, limiting, or refusing to issue or renew 

a health-related insurance plan or policy or other 

health-related coverage on the basis of disability. 

It also forbids the use of marketing practices or 

benefit designs that discriminate on that basis. 

For example, “a plan that covers bariatric surgery 

in adults, but excludes such coverage for adults 

with particular developmental disabilities would 

not be in compliance.”

Illustrative Monitoring Questions

■ Is new construction or alteration to existing facilities occurring in my state or locality 

with covered entities? Such entities may include insurers; hospitals, clinics, residential 

treatment programs, or other health care providers; social services agencies or other 

government agencies that administer health programs; etc. If there is such new 

construction or alteration, does it meet the 2010 ADA standards for accessible design?

■ Are accessible and effective communications methods being used by covered entities, 

such as state Medicaid and CHIP programs, Marketplaces, insurers, and health care 

providers? Do these entities offer auxiliary aids and services, as described in ADA 

regulations and reiterated in regulations under ACA Section 1557?

■ Do covered entities make health programs and activities offered through electronic 

and information technology accessible? For example, do the Marketplace and Medicaid 

program meet accessibility requirements for their websites, call centers, social services 

offices, and application kiosks?

■ Are health insurers limiting their issuance or renewal of coverage based on disability? Do 

any health plans use benefit designs or marketing practices that discourage enrollment by 

people with disabilities or otherwise discriminate against people with disabilities?

12 National Council on Disability
Enforcement

Aggrieved individuals can file complaints with 

OCR, which will use the same procedures 

that apply to claimed violations of Section 

504. The proposed rule notes that, if informal 

resolution fails, OCR’s enforcement tools include 

“suspension of, termination of, or refusal to 

grant or continue Federal financial assistance” 

and “referral to the Department of Justice with 

a recommendation to bring proceedings to 

enforce any rights of the United States.” OCR 

can also order remedial actions to help particular 

individuals, including former participants in a 

covered entity’s health program or activity and 

those who would have been participants if the 

discrimination had not occurred.

The proposed rule 

specifically includes a 

private right of action to 

enforce Section 1557 

in federal court.8 The 

regulatory preamble 

explains that “a private 

right of action and 

damages for violations 

of Section 1557 are 

provided for and available 

under . . . Section 504 . . . with respect to 

recipients of Federal financial assistance” subject 

to Section 1557. OCR added that “a private right 

of action and damages are also available for 

violations of Section 1557 by Title I entities”—

that is, entities created by Title I of ACA (primarily 

Marketplaces).

One final enforcement tool involves the 

federal False Claims Act. Entities, like private 

insurers, that obtain federal funds based on the 

above-described assurances of compliance with 

Section 1557 may be liable for three times the 

amount of federal funds such entities received. 

The False Claims Act permits “whistleblowers” 

to share in recoveries if they bring fraud to 

the attention of the Justice Department or 

the federal courts. This remedy is discussed 

with some additional detail in the section of 

this roadmap that addresses Marketplace 

coverage.

ACA Section 43029

Gathering and reporting data about the care 

people with disabilities receive is important to 

assessing whether policies and practices have 

a disparate adverse impact on people with 

disabilities and whether such people fully share 

in the gains of reform. Section 4302 of ACA thus 

requires much collection of data about possible 

disparities based on 

“race, ethnicity, sex, 

primary language, and 

disability status.”10

One provision 

that has not yet been 

implemented requires 

provider surveys that 

specifically focus on the 

access to care enjoyed 

by people with disabilities. ACA Section 4302(a) 

created Public Health Service (PHS) Act Section 

3101 [42 USC 300k], subsection (a)(1)(D) of which 

requires HHS to:

survey health care providers and establish 

other procedures in order to assess access 

to care and treatment for individuals with 

disabilities and to identify—

(i) locations where individuals with disabilities access primary, acute (including 

intensive), and long term care;

The absence of appropriations may 

have prevented HHS from carrying 

out [an ACA Section 4302(a)] 

provider survey.... Nevertheless, 

such a survey could move forward 

for providers who participate in 

Medicaid and CHIP.

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 13
(ii) the number of providers with accessible facilities and equipment to meet the 

needs of the individuals with disabilities, 

including medical diagnostic equipment that 

meets the minimum technical criteria set 

forth in section 510 of the Rehabilitation Act 

of 1973; and

(iii) the number of employees of health 

care providers trained in disability awareness and patient care of individuals with 

disabilities.11

However, PHS Act Section 3101 limits this 

duty based on funding: “data may not be 

collected under this section unless funds 

are directly appropriated for such purpose 

in an appropriations Act.”12 The absence of 

appropriations may have prevented HHS from 

carrying out this provider survey.

Nevertheless, such a survey could move 

forward for providers who participate in Medicaid 

and CHIP. Without language that limits obligations 

based on available appropriations, ACA Section 

4302(b)(1) requires that “any data collected” by 

Medicaid must “meet . . . the requirements of 

section 3101 of the [PHS] Act” and that CHIP 

programs must have “data collected and reported 

in accordance with section 3101” of the PHS 

Act.13 In a recent report to Congress, HHS noted 

that, under ACA Section 4302(b), “Collection and 

reporting of [disparities] data in Medicaid and 

CHIP must adhere to the standards developed 

under section 3101 of the PHS Act.”14 Since PHS 

Act Section 3101 applies to Medicaid and CHIP, 

notwithstanding the absence of appropriations, 

HHS can (and arguably must) move forward with 

provider surveys to assess access to care in 

Medicaid and CHIP for people with disabilities.

To be clear, HHS is gathering considerable 

data to assess disparities in care experienced by 

people with disabilities, as well as data about the 

impact of policy initiatives that include people 

with disabilities as a core beneficiary group.15

However, Section 4302’s survey requirement 

has not yet been met, and it could provide useful 

information about care options for Medicaid and 

CHIP beneficiaries with disabilities. 

14 National Council on Disability
Chapter 2. Health Plans Furnishing Essential 

Health Benefits

T

his chapter begins by explaining the types 

of health plans that must cover essential 

health benefits (EHBs). It then describes 

the basic structure of EHBs, the requirements 

that apply to plans governed by EHB rules, and 

the entities that can be held accountable for 

failing to meet such requirements.

Health Plans Required to Cover EHBs

ACA applies EHB requirements to many different 

types of coverage:

■ QHPs sold in Marketplaces, whether or not 

enrollees qualify for federal subsidies;

■ Medicaid alternative benefit plans (ABPs), 

which states may choose to provide to newly 

eligible adults with incomes at or below 138 

percent FPL (and that must also provide 

benefits that supplement EHB, as explained 

later in this roadmap’s Medicaid section); and

■ Any private coverage sold outside 

Marketplaces, whether to individuals or 

employers. This “catch-all” category has 

several exceptions:

❍ Employer-sponsored insurance (ESI) 

is not required to provide EHBs if the 

ESI comes from companies that either 

(1) are too large for the state’s smallgroup market or (2) self-insure rather 

than buy insurance. Self-insuring firms 

typically arrange for insurance companies 

to administer the ESI plan, but the 

employers retain ultimate responsibility 

for paying health care claims.16

❍ Insurance that is “grandfathered” is not 

required to cover EHBs. To qualify as 

“grandfathered,” insurance cannot have 

undergone any significant changes in 

benefits or out-of-pocket cost-sharing 

since March 23, 2010. An employer plan 

can remain grandfathered even though 

it continues to enroll new members. By 

contrast, an individual market plan cannot 

be grandfathered if it enrolls new members.

The Structure of EHBs

The ACA statute identifies 10 general categories 

of essential health benefits:

1. Ambulatory patient services;

2. Emergency services;

3. Hospitalization;

4. Maternity and newborn care;

5. Mental health and substance use disorders 

(M/SUD) services, including behavioral 

health treatment;

6. Prescription drugs;

7. Rehabilitative and habilitative services and 

devices;

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 15
8. Laboratory services;

9. Preventive and wellness services and 

chronic disease management; and

10. Pediatric services (including oral and vision 

care).

To fill in the details within these broad categories, 

the statute directs HHS to “ensure that the scope 

of the essential health benefits . . . is equal to 

the scope of benefits provided under a typical 

employer plan.”17 Rather than create federally 

specified rules about the amount, duration, 

and scope of coverage within the above ten 

EHB categories, HHS has given each state the 

responsibility to select a so-called benchmark 

plan that will provide the basis for EHB coverage 

within the state. States can choose from among 

ten options for such a benchmark:

■ The three small group plans with the highest 

enrollment in the state;

■ The three state-employee-benefit plans with 

the highest enrollment;

■ The three national health plans for federal 

employees with the highest enrollment; and

■ The health maintenance organization 

(HMO) within the state that has the highest 

commercial enrollment.

For pediatric coverage, benefits covered by CHIP 

are available as an additional benchmark option. 

If the state’s chosen benchmark does not cover a 

particular EHB category, another benchmark plan 

is used for that category.

If a state does not select a benchmark plan to 

define EHBs, the small group plan with the largest 

enrollment within the state, as determined by 

HHS, becomes the benchmark. If the benchmark 

plan, whether chosen by the state or HHS, does 

not cover a particular EHB category, and the 

state does not fill that gap by selecting another 

benchmark plan, federal rules specify which 

benchmark options are used to fill in the gaps.

After benchmark coverage has been chosen 

for each EHB category, other plans governed 

by EHB rules must provide benefits that “are 

substantially equal to the EHB-benchmark plan 

including covered benefits, [and] limitations on 

coverage including coverage of benefit amount, 

duration, and scope.”18

As a general rule, insurers can substitute, 

within a particular EHB category, benefits that 

are “actuarially equivalent” to the benefits 

covered by the benchmark plan; this means that 

for consumers as a whole, average claims costs 

within the benefit category would be the same as 

for the benchmark plan. Under 45 CFR 156.115(b)

(1), a substitution is actuarially equivalent only if 

it is so certified by a member of the American 

The Structure of EHBs

The ACA statute identifies 10 general 

categories of essential health benefits:

1. Ambulatory patient services;

2. Emergency services;

3. Hospitalization;

4. Maternity and newborn care;

5. Mental health and substance use 

disorders (M/SUD) services, including 

behavioral health treatment;

6. Prescription drugs;

7. Rehabilitative and habilitative services 

and devices;

8. Laboratory services;

9. Preventive and wellness services and 

chronic disease management; and

10. Pediatric services (including oral and 

vision care).

16 National Council on Disability
Academy of Actuaries, based on an analysis 

performed in accordance with generally accepted 

actuarial principles and methodologies, using a 

standardized plan population, and determined 

regardless of costsharing.19

Actuarial equivalent 

substitution is not 

allowed if it is forbidden 

by the state or if it 

involves prescription 

drugs. Ten states and the 

District of Columbia have 

prohibited actuarial substitution, but its use has 

been explicitly affirmed in 20 other states.20 In 

the remaining 20 states, actuarial substitution is 

permitted, since state law does not forbid it.

Legal Duties Involving Plans That 

Provide EHB Coverage

Both statutory and regulatory safeguards 

apply to plans that are required to furnish EHB 

coverage.21

Departing from the Amount, Duration, 

and Scope of Benchmark Coverage

As noted earlier, within all EHB categories except 

prescription drugs, plans must provide coverage 

that is “substantially 

equal” to the benchmark 

plan. Applicable 

regulations do not define 

this term. Clearly, they 

permit less change than 

the actuarial equivalence 

standard, since in states 

that forbid substitution 

of actuarially equivalent benefits, insurers can 

provide “substantially equal” benefits that depart 

somewhat from the EHB benchmark. However, 

it is unclear precisely how much variation from 

benchmark benefits is allowed.

CMS interprets the requirement of “substantial 

equality” as imposing a duty on health plans to 

modify details of benchmark coverage when 

necessary to meet ACA requirements.22 Examples 

include changes (1) to ensure that at least one 

Illustrative Monitoring Questions

For a health plan in my state or locality that is required to meet EHB requirements:

■ Does the state’s EHB benchmark fail to meet applicable federal standards for a particular 

benefit category? If so, does this health plan supplement benchmark coverage to meet 

federal requirements?

■ Has the state forbidden actuarial equivalent substitution? If not, and this health plan engages 

in such substitution, has the plan met ACA’s technical requirements (e.g., certification by a 

member of the American Academy of Actuaries, using a standardized population)? Does any 

actuarial substitution involve prescription drugs or substitution between EHB categories?

■ If the state forbids actuarial equivalent substitution, how much do the plan’s covered 

benefits depart from the benchmark plan? Is the plan’s coverage still “substantially equal” 

to the amount, duration, and scope of EHBs within the benchmark package?

[W]ithin all EHB categories 

except prescription drugs, 

plans must provide coverage 

that is “substantially equal” to 

the benchmark plan. The final 

regulations do not define this term.

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 17
drug is covered within each category and class 

listed in the United States Pharmacopeia (USP) 

(see later discussion), (2) to meet mental health 

parity requirements, and (3) to cover certain 

preventive services free of cost-sharing.

Actuarial substitution may occur only within a 

particular EHB category, not between categories. 

For example, within the category of rehabilitative 

and habilitative services and devices, a plan 

could increase coverage of physical therapy visits 

and reduce coverage of occupational therapy, 

compared to the EHB-benchmark plan. However, 

an insurer could not lower the number of physical 

therapy visits in order to cover additional mental 

health visits, since that would involve substitution 

between EHB categories.

Habilitative Services and Devices

Pre-ACA ESI, which furnishes the starting point 

for defining EHBs, was structured to address 

the needs of relatively healthy workers. It thus 

typically covered rehabilitative services, which 

seek to restore functioning after an injury or acute 

medical problem. By contrast, habilitative services, 

which can help people attain basic functioning for 

the first time, were outside the scope of many 

employer plans.23 When such plans serve as EHB 

benchmarks, habilitative services may not be 

covered. As a result, special rules apply.

If the benchmark plan does not cover 

habilitative services, the state may define such 

benefits, so long as the state definition does not 

violate more general EHB requirements, such as 

the prohibition of discriminatory benefit design. If 

neither the benchmark plan nor the state define 

covered habilitative services and devices, 45 

CFR 156.115(a)(5) specifies a three-part standard 

requiring that EHB-compliant plans:

(i) Cover health care services and devices that help a person keep, learn, or 

improve skills and functioning for daily 

living (habilitative services). Examples 

include therapy for a child who is not 

walking or talking at the expected age. 

These services may include physical and 

occupational therapy, speech-language 

pathology and other services for people 

with disabilities in a variety of inpatient 

and/or outpatient settings;

(ii) Do not impose limits on coverage of 

habilitative services and devices that are 

less favorable than any such limits imposed 

on coverage of rehabilitative services and 

devices; and

(iii) For plan years beginning on or after 

January 1, 2017, do not impose combined 

limits on habilitative and rehabilitative 

services and devices. [For example, an 

EHB-compliant plan cannot cover 40 visits 

for habilitation and rehabilitation services 

combined; any limits must apply separately 

for each of these two categories.24]

In explaining the meaning of this federal 

definition, CMS described the difference 

between habilitative and rehabilitative services:

Habilitative services, including devices, 

are provided for a person to attain, maintain, or prevent deterioration of a skill or 

function never learned or acquired due to a 

disabling condition. Rehabilitative services, 

including devices, on the other hand, are 

provided to help a person regain, maintain, 

or prevent deterioration of a skill or function that has been acquired but then lost or 

impaired due to illness, injury, or disabling 

condition.25

If the benchmark plan covers some habilitative 

services but does not fully meet these federal 

18 National Council on Disability
Illustrative Monitoring Questions

Monitoring questions will vary, depending on state policy, as shown by Table 1.

Table 1. Illustrative monitoring questions about habilitative services in states with 

various EHB policies

State EHB policy Illustrative monitoring questions

EHB-benchmark coverage of 

habilitative services and devices

If the 

benchmark 

plan does 

not cover 

habilitative 

services, has 

the state 

defined the 

benefit?

Questions 

about the state

Questions 

about health 

plans

Are any 

habilitative 

services 

included?

Do benchmark 

habilitative 

services meet 

the threepart federal 

standard?

Yes Yes N/A Are plans 

covering 

benchmark 

services or the 

equivalent?

Yes No N/A Has the state 

supplemented 

benchmark 

services to 

meet federal 

standards?

Are plans 

supplementing 

benchmark 

services to 

meet federal 

standards?

No N/A Yes Does the state 

definition meet 

general EHB 

requirements 

(e.g., nondiscrimination)?

No N/A No Are plans 

meeting federal 

standards?

Note: N/A = not applicable. The three-part federal standard requires (1) covering services 

and devices that help a person “keep, learn, or improve skills and functioning;” (2) covering 

habilitation no less generously than rehabilitation; and (3) starting in 2017, not imposing a shared 

visit limit on habilitation and rehabilitation.

standards, the state must “supplement the 

benchmark plan,” according to CMS, since the 

federal definition comprises the “minimum for 

States to use when determining whether plans 

cover habilitative services.” Accordingly, states 

as well as insurers must go beyond benchmark 

plans when necessary to ensure adequate 

coverage of these services.

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 19
Prescription Drugs26

EHB coverage of prescription drugs has several 

requirements, which, unless stated otherwise, 

apply in 2016 and later years.27

Breadth

A plan must cover at least one drug within each USP 

category and class of prescription drugs. Within a 

particular category or class, if the benchmark plan 

covers more than one drug, then other plans must 

cover at least the same number of drugs.

Pharmacy and Therapeutics Committees

Starting in 2017, each EHB-compliant plan must 

use a pharmacy and therapeutics (P&T) committee 

that (1) consists primarily of pharmacists and 

physicians or other clinicians licensed to prescribe 

drugs, (2) “represent[s] a sufficient number of 

clinical specialties to adequately meet the needs 

of enrollees,” (3) prohibits members from voting on 

matters for which they have a conflict of interest, 

and (4) has at least 20 percent of its members 

without any conflicts of interest involving the 

issuer or any drug manufacturer. Committees 

must meet at least quarterly; record the rationale 

for all decisions involving the plan’s drug formulary; 

“review policies that guide exceptions and other 

utilization management processes, including drug 

utilization review, quantity limits, and therapeutic 

interchange”; “review and approve all clinical prior 

authorization criteria, step therapy protocols, and 

quantity limit restrictions applied to each covered 

drug”; “evaluate and analyze treatment protocols 

and procedures related to the plan’s formulary 

at least annually”; and more broadly “develop 

and document procedures to ensure appropriate 

drug review and inclusion.”28 In addition, the 

committee is required to review new Food and 

Drug Administration (FDA) approvals of drugs and 

new authorized uses approved by the FDA. The 

P&T committee must:29

■ “Base clinical decisions on the strength 

of scientific evidence and standards of 

practice, including assessing peer-reviewed 

medical literature, pharmacoeconomic 

studies, outcomes research data,” and other 

information;

■ “Consider the therapeutic advantages of 

drugs in terms of safety and efficacy when 

selecting formulary drugs”; and

■ Ensure that the plan’s drug formulary:

❍ “Covers a range of drugs across a broad 

distribution of therapeutic categories and 

classes and recommended drug treatment 

regimens that treat all disease states”;

❍ “Does not discourage enrollment by any 

group of enrollees”; and

❍ “Provides appropriate access to drugs that 

are included in broadly accepted treatment 

guidelines and that are indicative of 

general best practices at the time.”

Note that, while these requirements are 

couched in terms of required procedures for 

Illustrative Monitoring Questions

For a particular health plan in my state or 

locality that must cover EHBs:

■ Does the formulary include at least one 

drug in each USP category and class?

■ If there is a USP category or class where 

the benchmark plan covers more than one 

drug, does this particular plan cover at least 

as many drugs?

20 National Council on Disability
plan committees, they also appear to establish 

substantive criteria for gauging the adequacy of 

prescription drug coverage.

Exception Requests

Plans must establish procedures that let a 

consumer, the consumer’s designee, or the 

consumer’s prescribing clinician “request and 

gain access to clinically appropriate drugs not 

otherwise covered by the health plan.” If the 

request is granted, the plan treats the drug as an 

essential health benefit, counting out-of-pocket 

costs toward annual cost-sharing limits.

Plans must provide for requests in three 

categories:

1. Standard exception requests, which apply 

to plan years starting in 2016. Each standard 

exception request must be decided within 

72 hours.

2. Expedited exception requests. These involve 

“exigent circumstances,” which “exist 

when an enrollee is suffering from a health 

condition that may seriously jeopardize the 

enrollee’s life, health, or ability to regain 

maximum function or when an enrollee is 

undergoing a current course of treatment 

using a nonformulary drug.” Each request in 

this more urgent category must be decided 

within 24 hours.

Illustrative Monitoring Questions

In 2017 and beyond, with a plan in my state or locality that must cover EHBs:

■ Does the plan have a P&T committee that fulfills ACA’s requirements for committee 

membership (pharmacists and prescribing clinicians, enough specialties to meet enrollee 

needs, limits on conflicts of interest)?

■ Do meetings of the P&T committee meet ACA’s procedural requirements (timing at least 

quarterly, rationale recorded for formulary decisions)?

■ Does the P&T committee review aspects of the plan’s prescription drug coverage as 

required by ACA (exceptions procedures, utilization management, prior authorization 

criteria, step therapy rules, quantity limits)? Does it evaluate formulary protocols and 

procedures at least annually?

■ Do the committee’s documented procedures ensure appropriate drug review and inclusion?

■ Does the committee regularly review FDA approvals of (1) new drugs and (2) new uses for 

already approved drugs?

■ Does the committee use ACA’s criteria for making decisions (based on the strength of 

scientific evidence and standards of practice, considering drug safety and efficacy)?

■ Has the committee ensured that the formulary meets regulatory standards (treating all 

disease states, not discouraging enrollment, providing access consistent with treatment 

guidelines and current best practices)?

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 21
3. External review. Starting in 2016, plans must 

offer procedures through which a consumer 

or the consumer’s prescribing clinician or 

other designee can request a review by an 

independent review organization of plan 

decisions to deny standard or expedited 

exception requests. The plan must resolve 

requests for external review within the 

same time periods that applied to the original exception request (72 hours for standard 

requests, 24 hours for expedited requests).

Treatment of Mental Health and 

Substance Use Disorders

Under ACA, mental health parity requirements that 

formerly governed ESI sponsored by firms with 

50 or more employees30 now apply to all coverage 

subject to EHB requirements,31 including Medicaid 

ABPs for low-income adults.32 Plans may not cover 

mental health and substance use disorders (M/

SUD) services differently than treatment of physical 

ailments along any of the following dimensions:33

■ Annual or aggregate limits on coverage;

■ Treatment or visit limits;

■ Out-of-pocket cost-sharing (deductibles, 

copayments, co-insurance);

■ Access to non-network care;

■ Classification of outpatient benefits (e.g., 

office visits vs. other outpatient visits); and

■ Other nonquantifiable treatment limitations, 

which include provider network tier design; 

restrictions based on geographic location, 

facility type, and provider specialty; priorauthorization requirements; “medical 

management standards, prescription drug 

formulary design, standards for provider 

admission to networks, determination of 

Illustrative Monitoring Questions

With a health plan in my state or locality that must cover EHBs:

■ Are procedures in place through which consumers can request and gain access to drugs 

not otherwise covered by the plan? Can the request be made by the consumer’s designee 

or prescribing clinician?

■ If the request is granted, what cost-sharing arrangements apply? Do out-of-pocket 

payments count toward the plan’s annual limit on consumer costs?

■ In exigent circumstances (health condition that may seriously jeopardize health or ability to 

regain maximum function, or enrollee undergoing course of treatment using nonformulary 

drug), are exception requests decided within 24 hours? In other circumstances, are they 

decided within 72 hours?

■ When the plan denies an exception request, can enrollees seek a review by an 

independent review organization? Does the plan decide on whether to grant review within 

the same time frame that applied to the original exception request (24 hours and 72 hours 

for exigent and standard requests, respectively)?

22 National Council on Disability
Illustrative Monitoring Questions

With a health plan in my state or locality that must cover EHBs:

■ Does it use different quantitative standards for M/SUD services and physical health care? 

Possible examples include annual or aggregate limits on visits, treatment, or coverage; and 

out-of-pocket cost-sharing rules.

■ Does the plan use different qualitative standards for M/SUD services and physical health 

care? Examples include access to non-network care, formulary design, provider networks 

and payments, medical management, step therapy requirements, requiring completing 

treatment to obtain other benefits, and so forth.

■ Do such quantitative or qualitative differences emerge when one compares the plan’s 

M/SUD coverage to its physical health coverage within any of the six categories specified 

in the regulation (emergency services, prescription drug coverage, in-network inpatient 

care, non-network inpatient care, in-network outpatient care, non-network outpatient care)?

■ Does the plan apply deductibles or out-of-pocket cost-sharing limits specifically to M/SUD 

services?

■ When the plan denies a requested M/SUD service, does it disclose the reasons for the 

denial and the medical necessity criteria that were used?

provider reimbursement rates, requirements 

for step therapy (for example, using lowercost treatments first before trying others), 

and requirements to complete a course of 

treatment as a condition of benefits.”34

To determine equivalence, physical and 

M/SUD benefits are divided into six categories: 

emergency care; prescription drugs; and 

in-network and non-network inpatient and 

outpatient care. Plans may not apply separate 

deductibles and out-of-pocket cost-sharing 

limits for M/SUDs and for physical health care, 

since that would increase out-of-pocket costs 

for consumers who need treatment of 

M/SUDs in addition to physical health care. 

State standards apply to the extent that they 

are more rigorous than federal rules. As a 

matter of process, plans and issuers must 

disclose, upon request, the medical necessity 

criteria used in denying an M/SUD service, 

along with the reasons for denial.

Discriminatory Benefit Design

Both ACA’s statute and implementing regulations 

prohibit discrimination in connection with plans 

required to cover EHBs. The statute provides 

that, in defining EHBs, HHS shall:

■ “not make coverage decisions . . . or design 

benefits in ways that discriminate against 

individuals because of their . . . disability”;

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 23
■ “take into account the health care needs 

of diverse segments of the population, 

including . . . people with disabilities”; and

■ “ensure that health benefits established as 

essential not be subject to denial to individuals 

against their wishes on the basis of the 

individuals’ age or expected length of life or of 

the individuals’ present or predicted disability, 

degree of medical dependency, or quality of 

life.”35

A 2015 law review article characterized the 

first two provisions 

as requiring 

nondiscrimination 

in defining EHBs,

whereas the final 

provision establishes 

that “a benefit defined 

as essential using 

nondiscriminatory 

criteria might still in 

practice be denied . . . 

in a way that violates” this section of ACA.36

One important unresolved issue is whether 

these statutory requirements apply just 

to HHS, in its development of EHB policy, 

or whether they also govern states and 

health plans.

Regulations are relevant as well:

■ Under 45 CFR 156.125:

❍ Subsection (a) provides that a plan fails 

to cover EHB “if its benefit design, or 

the implementation of its benefit design, 

discriminates based on an individual’s 

age, expected length of life, present or 

predicted disability, degree of medical 

dependency, quality of life, or other 

health conditions.”

❍ Subsection (b) requires EHB plans to 

comply with 156.200(e), which forbids 

QHPs from “discriminat[ing] on the 

basis of race, color, national origin, 

disability, age, sex, gender identity 

or sexual orientation.” It is not clear 

whether Section 156.125(b) applies this 

requirement to plans other than QHPs.

❍ Subsection (c) provides that these antidiscrimination rules do not bar insurers 

from “appropriately utilizing reasonable 

medical management 

techniques.”

As with the above-noted 

statutory provisions, 45 

CFR 156.125(a) forbids 

not just discriminatory 

benefit design but 

also discrimination in 

the “implementation 

of its benefit design.” 

This bars plans from 

creating or permitting practical obstacles 

that prevent people with disabilities from 

sharing in the gains of a theoretically 

non-discriminatory benefit design. Several 

examples listed below fall into this 

category, such as the example involving 

mail-order delivery.

■ More broadly, 45 CFR Section 147.104(e) 

prohibits all nongrandfathered insurance 

from engaging in discriminatory marketing 

or benefit design:

A health insurance issuer and its 

officials, employees, agents and representatives must comply with any 

applicable state laws and regulations 

One important unresolved issue 

is whether [ACA’s prohibition on 

discrimination in benefit design] 

requirements apply just to HHS, in 

its development of EHB policy, or 

whether they also govern states and 

health plans.

24 National Council on Disability
regarding marketing by health insurance issuers and cannot employ marketing practices or benefit designs that 

will have the effect of discouraging the 

enrollment of individuals with significant health needs in health insurance 

coverage or discriminate based on an 

individual’s race, color, national origin, 

present or predicted disability, age, 

sex, gender identity, sexual orientation, expected length of life, degree of 

medical dependency, quality of life, or 

other health conditions.

This regulatory language illustrates a critically 

important feature of the regulations: A policy 

or practice with discriminatory effects can 

violate ACA’s prohibitions, whether or not 

there is evidence of discriminatory intent. It is 

much easier to show discriminatory effects than 

to find proof of discriminatory intentions. The 

precise parameters of this “effects” test remain 

to be fleshed out, however.

In February 2015, CMS finalized revisions to 

these regulatory prohibitions of discrimination.37

In its regulatory preamble, the agency provided 

examples of practices that could potentially 

violate antidiscrimination rules in ways that are 

relevant to people with disabilities:

[M]aking drugs available only by mail order 

could discourage enrollment by, and thus 

discriminate against . . . individuals who 

have conditions that they wish to keep confidential;

Attempts to circumvent coverage of 

medically necessary benefits by labeling the 

benefit as a ‘‘pediatric service,’’ thereby excluding adults;

[R]efusal to cover a single-tablet drug 

regimen or extended release product that 

is customarily prescribed and is just as effective as a multi-tablet regimen, absent an 

appropriate reason for such refusal;

[P]lacing most or all drugs that treat a 

specific condition on the highest cost tiers.

[QHP quality improvement strategies] 

will be reviewed to ensure that they are not 

designed and do not have the effect of discouraging the enrollment of individuals with 

significant health needs.38

As noted earlier, the regulatory preamble to the 

proposed rule implementing ACA Section 1557 

provides another example of discriminatory 

benefit design: a plan that “covers bariatric 

surgery in adults, but excludes such coverage for 

adults with particular developmental disabilities 

would not be in compliance.”39

CMS’s explanation of how it will analyze 

discriminatory plan designs in the federally facilitated 

Marketplace sheds further light on the contours of 

forbidden discrimination. In its Notice of Benefit and 

Payment Parameters for 2016, CMS explained:

[W]e will notify an issuer when we 

see an indication of a reduction in the 

generosity of a benefit in some manner for subsets of individuals that is not 

based on clinically indicated, reasonable 

medical management practices. We conduct this examination whenever a plan 

subject to the EHB requirement reduces 

benefits for a particular group. Issuers are 

expected to impose limitations and exclusions based on clinical guidelines and 

medical evidence, and are expected to use 

reasonable medical management. Issuers 

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 25
may be asked to submit justification with 

supporting documentation to HHS or the 

State explaining how the plan design is not 

discriminatory.40

In setting out ground rules for 2016, CMS’s letter 

to health insurance issuers provided further 

insights about CMS’s analysis of possible QHP 

discrimination:41

CMS will perform an outlier analysis on 

QHP cost sharing (e.g., co-payments and 

co-insurance). CMS’s outlier analysis will 

compare benefit packages with comparable 

Illustrative Monitoring Questions

With a health plan in my state or locality that must cover EHBs:

■ Does the plan’s benefit design discriminate against people with present or predicted 

disabilities? For example:

❍ Are most or all drugs that treat a particular chronic condition placed on higher costsharing tiers?

❍ Does the formulary require multi-tablet regimens when single-tablet regimens are 

customarily prescribed?

❍ Does the plan limit to children any medically necessary services that could fit within 

EHB categories for adults?

❍ Are any benefits subject to limits or exclusions for people with particular disabilities?

❍ Have benefits been reduced or limited for particular subpopulations where such 

reductions or limitations do not appear consistent with accepted clinical guidelines 

and medical evidence?

❍ Is the plan unusual among its peers in the amount of cost sharing it imposes 

on benefits needed by people with disabilities? Compared to other plans, is this 

particular plan unusual in the amount of cost sharing that would be charged for 

standard treatment protocols that affect people with disabilities more than other 

consumers?

■ Do any practical obstacles cause discriminatory implementation of benefit designs that, on 

paper, appear non-discriminatory? For example, does the plan require mail-order delivery 

of all prescription drugs, even though people with disabilities may wish to keep some 

medications confidential?

■ Do any features of the plan’s marketing practices or benefit designs have the effect of 

discouraging enrollment by people with present or predicted disabilities?

26 National Council on Disability
cost-sharing structures to identify cost-sharing 

outliers with respect to specific benefits.

Additionally, CMS is considering conducting a review of each QHP to identify 

outliers based upon estimated out-of-pocket 

costs associated with standard treatment 

protocols for specific medical conditions using nationally-recognized clinical guidelines. 

The conditions under consideration include: 

bipolar disorder, diabetes, HIV, rheumatoid 

arthritis, and schizophrenia.

Also in reviewing a plan’s cost-sharing 

structure, CMS will analyze information 

contained in the Plans and Benefits Template, including, but not limited to the 

“explanations” and “exclusions” sections, 

with the objective of identifying discriminatory features or wording. Discriminatory cost sharing language would typically 

involve reduction in the generosity of 

a benefit in some manner for subsets 

of individuals for reasons not clearly 

based on common medical management 

practices.42

CMS’s procedures to monitor for illegal 

discrimination are relevant in two ways. First, 

disability-rights organizations can apply these 

analytic methods to assess whether plans 

governed by EHB requirements are engaging in 

forbidden discrimination. Second, people with 

disabilities can urge state-based Marketplaces 

and state insurance regulators to use similar 

methods in evaluating whether insurers may be 

violating anti-discrimination standards.

Accountable Entities

Several different entities can be held accountable 

for violating the above standards.

Health Plans and Their 

Sponsoring Insurers

Most of the above EHB obligations apply 

to nongrandfathered individual and group 

insurance, including Marketplace coverage, 

and to Medicaid ABPs. People with disabilities 

who are aggrieved by plan failures to meet 

the above standards may be able to file 

administrative complaints with the insurance 

regulator and, depending on the type of 

coverage involved, either the Marketplace or 

Medicaid program. State agency enforcement 

tools include “cease and desist” orders for 

plans to stop implementing particular policies, 

required corrective action plans from insurers, 

“enrollment freezes” that prevent a plan from 

signing up new members, fines and penalties, 

orders to compensate consumers for costs 

incurred because of illegal plan conduct, license 

suspension, and disqualification from operating 

as a QHP or Medicaid plan. In many cases, the 

initiation of a formal enforcement action results 

in a settlement through which the carrier agrees 

to change its practices going forward.

One context for administrative complaints 

involves the periodic renewal of insurers’ 

authorization to provide coverage. With insurance 

regulators and Marketplaces, this occurs 

annually. Medicaid health plans typically operate 

with multi-year contracts. If a plan slated for 

renewal has violated people with disabilities’ legal 

rights or otherwise operated in a problematic 

fashion, disability organizations can bring those 

problems to the attention of state agencies. 

Complaints can recommend terminating 

permission to continue offering coverage and/

or urge that, if renewal occurs, certain terms 

and conditions should attach to prevent the 

recurrence of past problems.

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 27
Marketplaces and Medicaid programs 

present special issues for administrative 

complaints. First, an insurer must be licensed 

to sponsor a QHP.43 Marketplaces can thus 

refer allegations of illegal conduct to the state 

regulator; such action may be particularly likely 

with the federally facilitated Marketplace, except 

in the few states where HHS has assumed 

enforcement responsibilities, based on the 

state’s notice that it cannot or will not enforce 

ACA’s insurance market reforms.44 By contrast, 

federal law does not require Medicaid plans 

to have insurance licenses. Accordingly, the 

Medicaid agency may be the only state-level 

administrative venue 

for raising issues about 

Medicaid managed care.

Second, a carrier can 

be denied permission 

to sponsor a QHP, 

without any evidence 

of legal violation. 

Before certifying a 

plan as qualified, a Marketplace must find that 

offering the plan “is in the interests of qualified 

individuals.”45 The disability community can thus 

bring problems that fall short of legal violations 

to Marketplaces’ attention. As with charges of 

illegal plan behavior, requested remedies can 

involve decertifying a problematic plan and/or 

legal restrictions that prevent the recurrence of 

past problems.

Aggrieved people with disabilities may also 

be able to bring suit to vindicate their abovedescribed rights. It is outside the scope of this 

roadmap to analyze the potential offered by court 

action, but several general observations may be 

helpful. Whether state court is an option and, if 

so, what relief is available will depend on state 

law. Access to federal court is likely to vary, 

based on factors that include the legal violation 

that is claimed. Questions to resolve in assessing 

the availability of relief through the courts 

include standing to bring suit, jurisdiction, and 

available remedies after a legal violation has been 

established.46

Government Agencies

It may be possible to hold state insurance 

regulators and Marketplaces accountable in 

court for failing to regulate carriers as required 

by ACA. In practice, such efforts may be more 

promising if they 

involve agency policy 

that violates explicit 

federal rules, rather 

than an agency’s 

largely subjective 

determination of 

whether a particular 

enforcement measure 

is appropriate to remedy a certain legal violation. 

To illustrate the former, courts may be willing 

to strike down a state’s definition of habilitative 

services and supports that, in 2017 or later, allows 

combined limits on the number of covered annual 

visits for habilitation and rehabilitation. Such a 

state policy would involve a federal regulatory 

violation that is established objectively, without 

any consideration of whether the state made an 

error in judgment.

Before resorting to litigation, disabilityrights groups in particular states could consider 

petitioning government agencies to implement 

unmet federal requirements. If such a petition 

succeeds, it may yield results with a substantially 

Before resorting to litigation, 

disability-rights groups in particular 

states could consider petitioning 

government agencies to implement 

unmet federal requirements.

28 National Council on Disability
reduced level of effort, compared to litigation. 

And if it does not succeed, failed attempts to 

obtain redress administratively can show the 

need to turn to the courts.

Again, we caution the reader that these 

are only general observations intended to 

flag issues for further analysis. This roadmap 

does not offer a rigorous or comprehensive 

examination of potential judicial relief, on this or 

any other issue.

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 29
30 National Council on Disability
Marketplace Operations

As noted earlier, ACA Section 1557’s 

discrimination rules apply to Marketplace 

operations. Marketplaces are thus 

required to make services accessible to people 

with disabilities as Marketplaces carry out 

their basic duties, including providing public 

information about health coverage; using 

Navigators and other application assisters, 

insurance brokers, and call centers to give 

consumers hands-on help; operating a web 

site; facilitating and processing applications for 

IAPs; structuring notices and forms; determining 

whether carriers’ proposed health plans qualify 

for being offered in the Marketplace; and helping 

consumers choose between Marketplace plans.

In addition to the general antidiscrimination 

requirements discussed earlier, specific ACA 

regulations governing the operation of the 

Marketplace establish duties to meet the needs 

of people with disabilities. One regulation 

broadly prohibits Marketplace discrimination 

based on disability (45 CFR 155.120(c)(ii)). Other 

regulations require the accessible performance of 

specific Marketplace functions:

■ The overall provision of timely, accessible 

information to consumers with disabilities 

(45 CFR 155.205(c));

■ Marketplace websites (45 CFR 155.205(c)(1));

■ “The provision of auxiliary aids and services 

at no cost to the individual in accordance 

with the Americans with Disabilities Act 

and section 504 of the Rehabilitation 

Act” (45 CFR 155.205(c)(1));

■ Consumer assistance, including Navigators 

(45 CFR 155.205(d)(1)), non-Navigator 

assistance in federally facilitated 

marketplaces (FFMs) (45 CFR 155.215(d)), 

and Certified Application Counselors 

(45 CFR 155.225(d)(5));

■ Outreach and education (45 CFR 

155.205(e)); and

■ Marketplace forms and notices (45 CFR 

155.230(b)).

In any state, the disability community could 

monitor Marketplace performance to evaluate the 

accessibility of each of these functions. Other, more 

specific requirements apply to consumer assistance 

furnished by federal Marketplaces. These mandate 

that such assistance (45 CFR 155.215(d)):

■ “Ensure that any consumer education 

materials, Web sites, or other tools utilized for 

consumer assistance purposes, are accessible 

to people with disabilities, including those 

with sensory impairments, such as visual or 

hearing impairments, and those with mental 

illness, addiction, and physical, intellectual, and 

developmental disabilities”;

Chapter 3. Marketplaces

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 31
■ “Provide auxiliary aids and services for 

individuals with disabilities, at no cost, 

when necessary or when requested 

by the consumer to ensure effective 

communication,” with use of friends 

and family “only when requested by the 

consumer as the preferred alternative 

to an offer of other auxiliary aids and 

services”;

■ “Provide assistance to consumers in a 

location and in a manner that is physically 

and otherwise accessible”;

■ “Ensure that authorized representatives 

are permitted to assist an individual with a 

disability to make informed decisions”;

■ “Acquire sufficient knowledge to refer 

people with disabilities to local, state, and 

federal long-term services and supports 

programs when appropriate”; and

■ “Be able to work with all individuals 

regardless of age, disability, or culture, and 

seek advice or experts when needed.”

These more detailed requirements are useful to 

consider in monitoring Marketplace performance. 

They are directly binding on federally facilitated 

Marketplace operations, and they may also 

serve as touchstones for assessing state-based 

marketplace policies and practices.

QHPs in the Marketplace

The above discussion explores requirements 

that apply to insurers that receive federal funds 

and to plans subject to EHB duties. Additional 

requirements that apply specifically to QHPs 

include:

■ A general prohibition against discrimination 

“on the basis of race, color, national origin, 

disability, age, sex, gender identity or sexual 

orientation” (45 CFR 156.200(e));

■ Statutory and regulatory prohibitions 

against employing “marketing practices 

or benefit designs that will have the 

effect of discouraging the enrollment of 

individuals with significant health needs in 

QHPs” (45 CFR 156.225(b); see also ACA 

Section1311(c)(1)(A));

■ A requirement to provide “all applications 

and notices to enrollees” in “a manner 

that is accessible and timely to . . . [i]

ndividuals living with disabilities including 

accessible Web sites and the provision of 

auxiliary aids and services at no cost to the 

individual in accordance with the Americans 

with Disabilities Act and section 504 of 

the Rehabilitation Act” (45 CFR 156.250, 

cross referencing 155.230(b), which crossreferences 155.205(c)); and

■ Requirements to maintain a provider 

network “that is sufficient in number and 

types of providers, including providers that 

specialize in mental health and substance 

abuse services, to assure that all services 

will be accessible without unreasonable 

delay” (45 CFR 156.230(a)(2)).

This is the only requirement not discussed 

above in connection with Section 1557 or 

EHB compliance. However, network adequacy 

requirements typically apply to nongroup plans 

outside the Marketplace as well as to QHPs. In 

most states, such requirements are enacted by 

the insurance regulator. Relevant information 

for monitoring varies among states. Typically, 

insurers must file access plans with the 

insurance regulator showing detailed information 

about provider networks and the plan’s relevant 

32 National Council on Disability
rules and procedures. Depending on the state, 

enrollees may be able to obtain non-network 

care for in-network cost-sharing amounts if 

the provider network does not meet enrollees’ 

needs. Consumers can use insurers’ internal 

grievance and appeals procedures to seek nonnetwork care, and many insurance regulators are 

responsive to consumer complaints about the 

adequacy of plan networks.

Two final comments are important. First, 

if insurers offer coverage in the Marketplace 

despite their violation of the requirements 

described in this report, available remedies may 

include actions under the Federal False Claims 

Act. ACA Section 1313(a)(6)(A) specifies:

Payments made by, through, or in connection with an Exchange are subject to the 

False Claims Act (31 U.S.C. 3729 et seq.) 

if those payments include any Federal 

funds. Compliance with the requirements 

of this Act concerning eligibility for a health 

insurance issuer to participate in the Exchange shall be a material condition of an 

issuer’s entitlement to receive payments, 

including payments of premium tax credits 

and cost-sharing reductions, through the 

Exchange.

The False Claims Act provides treble damages—

in this case, a requirement for insurance 

companies to refund three times the amount 

of all federal subsidies they received while 

they were violating any of the above ACA 

requirements. “Whistleblowers” who bring such 

violations to the attention of the Department of 

Justice or the courts can share in the resulting 

recoveries, so long as the information they 

provide is not part of the general public record.

As with this report’s earlier discussions of 

judicial remedies, these comments about the 

False Claims Act are not intended as anything like 

a comprehensive guide or legal advice. Rather, 

the goal is to flag important issues for further 

consideration by people with disabilities and their 

representatives.

Finally, the National Association of Insurance 

Commissioners’ model state law for health plan 

networks and draft CMS regulations setting out 

revised standards for network adequacy are not 

addressed in this roadmap. They were published 

in October and December 2015, respectively.47

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 33
34 National Council on Disability
Chapter 4. Medicaid

Here, we analyze monitoring issues 

involving expanded coverage for lowincome adults under ACA as well as ACA’s 

new requirements for Medicaid applications and 

renewals. Medicaid issues involving long-term 

services and supports (LTSS), including homeand community-based services (HCBS), are 

discussed in other NCD publications, including 

this project’s ACA implementation roadmap.

However, we begin the Medicaid chapter with 

two discrete comments about issues to monitor 

in analyzing implementation of selected ACA 

reforms to Medicaid coverage of LTSS. First, 

with integrated systems of care for adults who 

are dually eligible for Medicaid and Medicare, 

disability-rights groups in a state implementing 

an integration demonstration could review ACA 

Section 2702(c), which lists goals for the CMS 

office overseeing such demonstrations, and all of 

the demonstration’s key contractual documents. 

The latter documents include memoranda of 

understanding between CMS and the state and 

three-way contracts among CMS, the state, and 

private managed care plans. People with disabilities 

and their representatives could analyze whether 

the state’s implementation of the demonstration 

and any involvement of private health plans in the 

demonstration (1) advances the listed statutory 

goals and (2) meets each applicable requirement of 

the governing contractual documents.

Second, in analyzing state implementation 

of ACA’s new Community First Choice (CFC) 

option, disability organizations could identify 

issues to monitor by examining (1) the detailed 

requirements of the CFC’s governing statute 

(Social Security Act Section 1915(k)) and (2) the 

“community-based setting” regulations in 42 

CFR Section 441.710, which govern CFC as well 

as other forms of Medicaid-covered HCBS.

Expanded Coverage for 

Low-Income Adults

A key ACA provision established a new Medicaid 

eligibility category for adults with incomes at or 

below 138 percent of FPL who are not otherwise 

eligible based on such categorical grounds as 

a disability that has been found to meet the 

severity standards for Supplemental Security 

Income (SSI); age 65 or older; or pregnancy.

Services provided to such newly eligible, 

income-based adults qualify for a much higher 

federal matching rate than applies to most 

Medicaid services. While the Federal Government 

pays an average of 57 percent of state Medicaid 

costs under the standard federal medical 

assistance percentage (FMAP), states receive 100 

percent FMAP for newly eligible adults through 

the end of calendar year 2016, after which that 

FMAP gradually declines to 90 percent in 2020 

and thereafter.

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 35
ACA originally mandated nationwide 

coverage of such low-income adults, but the 

U.S. Supreme Court ruled that each state had 

the constitutional right 

to decide whether to 

implement this new 

eligibility category. As 

of December 8, 2015, 

31 states and the 

District of Columbia had 

expanded Medicaid eligibility as provided 

by ACA.48

Two issues involving expanded eligibility are 

particularly important to people with disabilities: 

the alternative benefits plan (ABP), which defines 

covered services for newly eligible adults; and 

procedures through which people with disabilities 

can obtain benefits more generous than what the 

state includes in its ABP.

Alternative Benefit Plans

ACA provides that low-income adults receive 

covered benefits in the form of an ABP. At a 

state’s option, an ABP can be based on any of the 

following four benchmark plans:

■ The Blue Cross/Blue Shield Preferred 

Provider Option, offered through the Federal 

Employees Health Benefit program;

■ State employee coverage that is offered and 

generally available;

■ The HMO with the largest commercial, nonMedicaid enrollment in the state; or

■ Secretary-approved coverage that HHS 

determines meets the needs of the covered 

population. A state can use this option to 

align benefits for newly eligible, low-income 

adults with the benefits that other Medicaid 

adults receive. Such alignment may require 

improvements to the pre-ACA Medicaid 

package for adults, since that package must 

comply with EHB requirements in a state 

with aligned benefits. 

EHB requirements that 

may require changes to 

pre-ACA adult services 

include the potential 

addition of benefits 

(such as treatment of M/

SUDs, habilitation, and preventive services) 

as well as compliance with applicable EHB 

safeguards (including mental health parity 

and non-discrimination).

ABPs must meet several requirements:

■ They must cover all EHBs. This duty can be 

fulfilled by:

❍ Using as the ABP benchmark one of the 

plans that the state can use to define 

EHBs for all nongrandfathered plans; or

❍ Ensuring that the ABP is consistent with 

a plan that the state is allowed to use 

to define EHBs for all nongrandfathered 

plans.

■ Several principles apply, under either of 

these approaches:

❍ The Medicaid program can select a different 

EHB-benchmark plan than what the state 

uses to define EHBs for private plans;

❍ The Medicaid program can use more 

than one EHB-benchmark plan to define 

different EHBs for purposes of the ABP;

❍ The ABP must meet EHB requirements 

that go beyond selection of a 

benchmark plan. As explained earlier, 

such requirements include mental 

health parity, nondiscrimination, and 

As of September 1, 2015, 30 states 

and the District of Columbia had 

expanded Medicaid eligibility as 

provided by ACA.

36 National Council on Disability
special rules for prescription drugs and 

habilitative services.

■ In comparing a Medicaid ABP to the 

applicable EHB-benchmark plan, actuarial 

substitution is allowed so that the estimated 

net claims costs for combined ABP benefits 

for the eligible population are no less than 

for the benchmark plan. Unlike general 

EHB rules:

❍ The actuarial value test for ABPs applies 

to all covered benefits, rather than to 

each individual EHB category; so

❍ A state can substitute benefits 

between EHB categories. For example, 

an ABP could increase coverage of 

laboratory services to compensate for 

reduced coverage of habilitative and 

rehabilitative care. However, with four 

specific services—prescription drugs, 

mental health care, vision care, and 

hearing services—ABP coverage within 

the service category must have an 

actuarial value at least 75 percent of the 

benchmark plan’s coverage within that 

category.49

■ ABPs must include certain categories of 

coverage that go beyond EHBs, including an 

assurance of non-emergency transportation 

(whether furnished through covered benefits 

or Medicaid administration), services 

provided by federally qualified health centers 

and rural health centers, family planning 

supplies and services, and, for beneficiaries 

age 0–20, early and periodic screening, 

diagnosis, and treatment (EPSDT). The latter 

category includes, whenever needed by 

a particular young person, any medically 

necessary care potentially coverable under 

the Medicaid statute. 

Obtaining Services That Go beyond 

the ABP

A state may define the ABP to include fewer 

services than the Medicaid program offers to 

other adults, including HCBS or other LTSS. 

In that case, many (but not all) people with 

disabilities could be better off with standard 

Medicaid benefits than the ABP, and the state 

must provide two options for beneficiaries to 

move from the ABP to standard services:

1. Medical frailty. A low-income adult beneficiary who meets the state’s definition of 

“medically frail or otherwise an individual 

with special medical needs” is exempt from 

the requirement to receive the ABP rather 

than broader benefits the state covers for 

other adults. That state definition must 

include at least the following:

[I]ndividuals with disabling mental 

disorders (including children with 

serious emotional disturbances and 

adults with serious mental illness), 

individuals with chronic substance 

use disorders, individuals with serious 

and complex medical conditions, individuals with a physical, intellectual or 

developmental disability that significantly impairs their ability to perform 

1 or more activities of daily living, or 

individuals with a disability determination based on Social Security criteria 

or in States that apply more restrictive 

criteria than the Supplemental Security Income program, the State plan 

criteria.50 [In addition, the state definiMonitoring and Enforcing the Affordable Care Act for People with Disabilities 37
tion must include certain young people 

who have disabilities or are connected 

with the foster-care system.]51

Someone who qualifies as medically 

frail can opt for either standard adult benefits or the ABP; depending on the state 

and beneficiary, one or the other package 

may be better in meeting consumer needs. 

New Medicaid enrollees must be given 

“information based on eligibility regarding 

benefits and services that are available to 

them,” including ABPs vs. other Medicaid 

benefits for adults. Such “information must 

be sufficient for the individual to make 

an informed choice” between available 

benefits.52

Illustrative Monitoring Questions

If my state has expanded Medicaid and its ABP differs from benefits that Medicaid covers for 

other adults:

■ Which of the four specified ABP benchmark options is the state using as the basis for ABPs?

■ Which EHB-benchmark plan(s) has (have) the state chosen as the standard that defines 

EHBs for the ABP? If the ABP differs from such EHB-benchmark plan(s), is the total actuarial 

value of all benefits at least as high as the EHB-benchmark plan(s)? In assessing actuarial 

value, was the relevant population of low-income adults used to estimate claims costs?

■ Does the ABP differ from the EHB-benchmark plan(s) in covering prescription drugs, mental 

health care, vision services, or hearing services? If so, is the ABP’s actuarial value, within that 

benefit category, at least 75 percent of the actuarial value for the EHB-benchmark plan(s)?

■ Does the ABP’s coverage of EHBs meet all requirements for EHB-compliant plans 

(including special rules for habilitative services and prescription drugs, mental health parity, 

and nondiscrimination)?

■ Does the ABP cover non-EHB services required by ACA (health center services, family 

planning, and, for those age 0–20, EPSDT)? Does the state assure that ABP recipients can 

obtain necessary nonemergency transportation, either by including such transportation as 

an ABP service or by providing it as part of Medicaid program administration?

If my state has expanded Medicaid and aligned the ABP with benefits for other adults:

■ Do Medicaid benefits for adults cover all EHBs?

■ Does Medicaid’s coverage for adults meet the requirements that apply to EHB-compliant 

plans (e.g., mental health parity, special rules for habilitation and prescription drugs, nondiscrimination, preventive services without cost-sharing)?

38 National Council on Disability
CMS has not required states to follow 

any particular procedures in identifying 

newly eligible adults who may qualify for 

the medical frailty exemption. However, 

more general laws could be read to impose 

duties of effective state action. For example, 

general Medicaid regulations require states 

to determine eligibility using standards 

and methods that are “consistent with the 

objectives of the program and with the 

rights of individuals under the United States 

Constitution, the Social Security Act . . . 

section 504 of the Rehabilitation Act of 

1973, and all other relevant provisions of 

Federal and State laws”53 and in a manner 

“consistent with simplicity of administration 

Illustrative Monitoring Questions

If my state has expanded Medicaid and its ABP differs from benefits that Medicaid covers for 

other adults:

■ How does the state define eligibility for the medical frailty exemption? Is the state 

definition at least as broad as the federal definition?

■ How does the state inform beneficiaries about (1) the differences between the ABP and 

other Medicaid benefits for adults and (2) the steps required to qualify for a medical frailty 

exemption?

■ What actions (if any) does the state Medicaid program take (1) to identify low-income 

adults who may qualify for a medical frailty exemption and, (2) once those adults are 

identified, to ensure that they can benefit from the exemption?

■ What steps must a consumer take to qualify for the medical frailty exemption?

■ If state procedures do not effectively inform potentially eligible beneficiaries about the 

medical frailty exemption and create an accessible process for qualifying as medically 

frail, are such shortcomings inconsistent with Medicaid program objectives, people with 

disabilities’ rights under Section 504, or the best interests of applicants and beneficiaries? 

Do these shortcomings have a disparate adverse impact on people with disabilities, thus 

triggering a potential violation of ACA Section 1557?

■ How does the state inform low-income adults about their right to have eligibility determined 

based on disability? What steps must such adults take to obtain such an eligibility 

determination? Are the state’s policies and practices in this area inconsistent with Medicaid 

program objectives, people with disabilities’ rights under Section 504, the best interests of 

applicants and beneficiaries, or nondiscrimination requirements of ACA Section 1557?

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 39
and the best interests of the applicant or 

beneficiary.”54 And, as explained earlier, the 

nondiscrimination requirements of ACA Section 1557 apply to state Medicaid agencies.

2. Beneficiary choice of eligibility category. 

CMS has made clear that given more than 

one basis for Medicaid eligibility, each 

beneficiary can select his or her eligibility 

category.55 A consumer whose eligibility is 

based on a disability determination, using 

standards no less strict than those applied 

for SSI, is exempt from ABPs.56 However, 

if a beneficiary requests such a determination and is found to meet those disability 

standards, from that point forward the state 

is limited to standard FMAP, rather than 

the highly enhanced FMAP that applies to 

low-income adults.57 It is thus in states’ 

financial interests to ensure that people with 

disabilities can have their needs met within 

the low-income adult 

category, without requesting a change in 

eligibility categories.

Not all people 

with disabilities 

will improve their 

circumstances by seeking a transfer to 

pre-ACA, disability-based Medicaid, which 

almost always limits eligibility to people with assets below a specified level. 

Such assets tests both limit coverage 

and complicate the enrollment process 

by requiring evidence of asset value. By 

contrast, ACA’s new eligibility category 

for low-income adults predicates financial 

eligibility on income alone, without regard 

to assets.

Application and Renewal 

Procedures

Among ACA’s requirements for Medicaid 

applications and renewals, two issues stand 

out in their potential impact on people with 

disabilities: (1) helping applicants for insurance 

affordability programs (IAPs) learn about and 

qualify for forms of Medicaid that are available 

above 100 or 138 percent FPL, which is the 

income range typically reserved for Marketplace 

subsidies; and (2) streamlined renewal, including 

administrative renewal based on reliable data 

showing continued eligibility.

One preliminary comment is important. 

People with disabilities in many states will have 

various options for the kinds of coverage they 

can receive, such as standard Medicaid benefits 

versus ABPs, or disability-based Medicaid 

versus Marketplace subsidies.58 They may be 

asked questions with significant consequences 

for their coverage 

options that are not selfevident. For example, 

people with disabilities 

may lose access to 

comparatively generous 

benefits available through 

traditional Medicaid if 

they fail to answer disability-related questions 

on the IAP application form or if, after qualifying 

for Marketplace subsidies, they respond in the 

affirmative to questions about whether they 

want to drop their Medicaid applications. All of 

these complexities make it critically important 

for Medicaid agencies and Marketplaces to 

provide information and counselling during 

the application and enrollment process to help 

people with disabilities make informed choices. 

ACA’s new [Medicaid] eligibility 

category for low-income adults 

predicates financial eligibility on 

income alone, without regard to 

assets.

40 National Council on Disability
Otherwise, they may not receive the full 

measure of gains from ACA that other people 

enjoy, raising questions under ACA Section 

1557’s non-discrimination rules.

Medicaid Eligibility above the Federal 

Poverty Level

ACA requires “no-wrong door” application 

procedures through which, regardless of where 

and how a consumer seeks coverage, the 

consumer is routed to the IAP for which he or 

she qualifies. Often this results in consumers 

with incomes above 100 or 138 percent FPL 

qualifying for Marketplace subsidies. Such 

subsidies are available to U.S. citizens and 

lawfully present adults who: (1) are not offered 

employer-sponsored insurance that meets ACA’s 

standards for affordability and minimum value; 

(2) have incomes at or below 400 percent of FPL; 

and (3) have incomes above a specified minimum 

threshold. For adults, that 

threshold is 100 percent 

of FPL in states that do 

not expand Medicaid 

eligibility and 138 percent 

of FPL in expanding 

states.59 For children, 

QHP subsidy eligibility 

is limited to those with 

family incomes above 

the upper income bound 

for Medicaid or CHIP 

eligibility.

In many states, 

Medicaid is available 

for some people 

with disabilities 

whose incomes are in the range where most 

consumers qualify for Marketplace subsidies. 

Depending on the state, examples of such 

Medicaid eligibility categories may include:

■ Medically needy coverage, available to 

those whose unreimbursed medical 

expenses reduce their disposable income 

to specified levels;

■ Medicaid “buy-in coverage,” through which 

working people with disabilities can increase 

their earnings above standard Medicaid 

income limits without losing Medicaid 

services needed for employment; and

■ Medicaid coverage of HCBS and other 

LTSS. Depending on the state and the 

characteristics of the individual consumer, 

such coverage may extend well above 100 

or 138 percent of FPL.

These categories are sometimes termed “nonMAGI-based Medicaid.” In structuring eligibility 

for low-income adults and 

children, pregnant women, and 

certain other categories, ACA 

bases income determinations 

on modified adjusted gross 

income (MAGI). MAGI rules 

rely on federal income tax 

principles to define households, 

determine the value of 

income, and identify the 

deductions that reduce gross 

income to the net income 

level used to assess Medicaid 

eligibility. MAGI also defines 

eligibility for Marketplace 

subsidies. Medicaid eligibility 

categories based on a finding of disability, in 

contrast, define income using pre-ACA financial 

[P]eople with disabilities may 

lose access to comparatively 

generous benefits available 

through traditional Medicaid if 

they fail to answer disabilityrelated questions on the IAP 

application form or if, after 

qualifying for Marketplace 

subsidies, they respond in the 

affirmative to questions about 

whether they want to drop their 

Medicaid applications.

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 41
eligibility rules, including traditional income 

disregards and household definitions.

Used by the federal marketplace and in 

states that have not gained CMS approval 

for state-specific forms, the national IAP 

application contains several questions about 

applicants’ capacity to engage in basic activities 

of daily living. The online version asks whether 

applicants have a physical disability or mental 

health condition that limits their ability to work, 

attend school, or take care of their daily needs; 

and whether they need help with activities of 

Illustrative Monitoring Questions

If my state provides Medicaid eligibility for people with disabilities with incomes above the 

minimum level that qualifies for Marketplace subsidies:

■ How does the IAP application used in my state ask about potential disability experienced 

by the applicant or members of the applicant’s family?

■ When an application indicates potential disability, what procedures are used to route the 

application to the Medicaid program? How often does the application fail to reach the 

Medicaid program? How (if at all) does the Marketplace inform consumers about Medicaid 

coverage above normally applicable income levels?

■ How can applicants for Marketplace subsidies (or people found eligible for such subsidies) 

request a determination of eligibility for disability-based Medicaid? How are consumers 

informed about such procedures? How many requests have been received?

■ For people with disabilities, what actions, if any, limit access to determinations of disabilitybased Medicaid, such as a consumer’s (1) failure to answer disability-based questions 

on the IAP application or (2) agreement to withdraw a Medicaid application? How do 

the Medicaid agency and the Marketplace inform people with disabilities about the 

consequences of those actions?

■ What procedures ensure Medicaid follow-up when the state Medicaid program receives an 

IAP application signaling the possibility of disability-based Medicaid? How frequently are 

these procedures used?

■ While the Medicaid program is considering potential disability-based eligibility, do the 

affected household members receive subsidized Marketplace coverage?

■ Are effective procedures in place for electronically transferring applicant’s files between 

Medicaid and the Marketplace?

42 National Council on Disability
daily living or live in a medical facility or nursing 

home.60 These questions seek to flag:

■ The potential presence of disabilities and 

consequent eligibility for Medicaid above 

normal income thresholds; and

■ Potential eligibility for the medical frailty 

exception among those who qualify for 

Medicaid as low-income adults.

When an IAP application signals potential 

disabilities within a household that is eligible for 

Marketplace subsidies, the application is sent 

to the state Medicaid program for analysis of 

disability-based eligibility. The Medicaid agency is 

supposed to follow up 

with the family and obtain 

additional information 

to see whether family 

members qualify 

for Medicaid. In the 

meantime, the household 

can receive subsidized 

Marketplace coverage, including advance premium 

tax credits (APTCs). If such an APTC recipient 

winds up qualifying for disability-based Medicaid, 

he or she shifts to Medicaid and is not required to 

repay the APTCs.

Whichever agency receives the IAP application 

must transfer the applicant’s file electronically 

to the other agency without delay when such 

a transfer is needed to determine eligibility for 

assistance administered by the latter agency. These 

procedures apply either if the IAP application 

suggests potential disability-based Medicaid 

eligibility or if a consumer requests a determination 

of eligibility under non-MAGI Medicaid categories. 

However, consumers qualifying for Marketplace 

subsidies may be asked whether they want to drop 

their Medicaid applications; an affirmative answer 

could foreclose a determination of eligibility for 

more comprehensive services through disabilitybased Medicaid.

Medicaid Administrative Renewal

Historically, so-called procedural terminations 

have been a significant problem facing Medicaid. 

Traditionally, consumers whose Medicaid 

eligibility periods were coming to an end would 

receive a notice from the state asking them 

to complete a form describing their current 

circumstances. Failure to complete and return 

the form would trigger a procedural termination, 

even if the beneficiary continued to be eligible.

ACA has created new 

renewal procedures.61

Medicaid programs 

must, on their own, 

examine available 

sources of data that can 

potentially demonstrate 

continuing eligibility. This 

obligation to obtain information on the agency’s 

own volition is termed ex parte renewal. Such 

data gathering can include the case records 

of other government programs, data provided 

by a federal data hub that furnishes IAPs with 

information from multiple federal agencies, 

quarterly wage and new-hires data from state 

workforce agencies, and private vendors that 

have payroll data from many large employers.

If reliable data show continued eligibility for 

Medicaid, coverage is renewed administratively, 

without seeking information from the beneficiary. 

In such cases, the state sends the beneficiary 

a notice of renewal, explaining the basis of the 

state’s determination of continued financial 

eligibility. The beneficiary is informed of the 

legal duty to notify the state of any changed 

[Under ACA], [i]f reliable data 

show continued eligibility for 

Medicaid, coverage is renewed 

administratively, without seeking 

information from the beneficiary.

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 43
Illustrative Monitoring Questions

■ What rules and procedures has my state Medicaid program established for ex parte data 

gathering and administrative renewal?

■ Does my state renew Medicaid eligibility administratively when case records from other 

need-based programs, like SSI and the Supplemental Nutrition Assistance Program 

(formerly known as food stamps), show continued financial eligibility?

■ Has my state conducted data mining to identify beneficiary groups whose circumstances 

are so stable that continued eligibility is highly likely, such as people with disabilities whose 

eligibility is based on SSI receipt?

■ Does my state provide administrative renewal under circumstances where such renewal 

occurs in other states (e.g., participants in Medicare Savings Programs, households where 

income consists entirely of Social Security payments, recipients of LTSS or HCBS, people 

with incomes below certain levels)?

circumstances that could affect Medicaid 

eligibility. Medicaid continues in place unless 

and until the beneficiary provides notice of 

changed circumstances. Administrative renewal 

also applies to households with characteristics 

that the state has found are reliably associated 

with continuing eligibility. These procedures are 

required for all Medicaid eligibility categories.62

Our earlier roadmap discussed these issues at 

length, providing both federal authorities and 

state examples of the kinds of data that can 

trigger administrative renewal.

44 National Council on Disability
Conclusion

ACA and its implementing regulations 

contain numerous important safeguards 

that are intended to help people with 

disabilities receive the complete benefit of this 

landmark legislation. The full meaning of these 

safeguards will become apparent with time, as 

both HHS and the courts resolve questions that 

arise. One fact is already clear: the disability 

community’s active involvement will be essential 

for people with disabilities to benefit fully from 

ACA’s legal protections. 

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 45
46 National Council on Disability
1 We very briefly touch on Integrated systems of Medicare and Medicaid coverage for dually eligible beneficiaries 

under demonstration projects authorized by the Centers for Medicare and Medicaid Services, which typically 

include home- and community-based services and other long-term services and supports.

2 U.S. Department of Health and Human Services, “Nondiscrimination in Health Programs and Activities; 

Proposed Rule,” 80 Federal Register 54172–54221 (September 8, 2015), http://www.gpo.gov/fdsys/pkg/

FR-2015-09-08/pdf/2015-22043.pdf.

3 In some cases, Section 1557 applies to employer-sponsored insurance—namely when (1) the coverage is for 

employees engaged in a health program or activity on behalf of the employer or (2) the employer receives federal financial assistance that helps fund its health coverage for employees.

4 See our earlier Roadmap to ACA Implementation for a discussion of the Access Board’s draft standards.

5 Proposed 45 CFR §92.4.

6 Proposed 45 CFR §92.204(a).

7 Proposed 45 CFR §92.204(b).

8 Proposed 45 CFR §92.302(c).

9 Much of the discussion in this section is taken from National Council on Disability, “Implementing the Affordable Care Act: A Roadmap for People with Disabilities,” 2015.

10 42 USC 300k(a)(1)(A), enacted in ACA §4302(a).

11 Public Health Service Act §3101(h) [42 USC 300k(h)].

12 Public Health Service Act §3101(h) [42 USC 300k(h)].

13 These provisions are codified in Social Security Act §§ 1902(a)(76) and 2108(e)(7) [42 USC §§1396a(a)(76), 

1397hh(e)(7)].

14 HHS, November 2014, “Report to Congress Improving the Identification of Health Care Disparities in Medicaid 

and CHIP,” http://www.medicaid.gov/medicaid-chip-program-information/by-topics/quality-of-care/downloads/ 

4302b-rtc-2014.pdf.

15 An example of the latter is the work being done by the National Quality Forum to develop quality measures for 

HCBS See, for example, National Quality Forum, Addressing Performance Measure Gaps in Home and Community-Based Services to Support Community Living: Initial Components of the Conceptual Framework: Interim 

Report, July 15, 2015, http://www.qualityforum.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=79920.

16 Employers typically limit their exposure by purchasing so-called “stop loss” coverage, through which an insurer 

agrees to pay claims that exceed a specified, threshold amount.

17 ACA §1302(b)(2)(A).

18 45 CFR 156.115(a)(1).

19 http://www.ecfr.gov/cgi-bin/text-idx?SID=e57482648c344b31ae3b450b2791ea40&mc=true&node=sp45.1.156.

b&rgn=div6.

20 Harrison Institute for Public Law, Georgetown Law, “Issue Brief: State Implementation of Essential Health 

Benefit Requirements,” January 8, 2014, http://webcache.googleusercontent.com/search?q=cache:-

zhyuhczvM1QJ:www.law.georgetown.edu/academics/academic-programs/clinical-programs/our-clinics/hip/

upload/harrison_chir-issue-brief-v-1-8-14-1.docx+&cd=2&hl=en&ct=clnk&gl=us.

21 The roadmap focuses on the safeguards that appear to be of greatest importance to people with disabilities. 

Notable examples of provisions we do not explore are (1) requirements under ACA §1302 (b)(4)(A) and 45 CFR 

§ 156.110(e) that the total EHB package should “reflect an appropriate balance” among service categories, 

“so that benefits are not unduly weighted toward any category”; and (2) the requirement to cover, without any 

Endnotes

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 47
out-of-pocket cost-sharing, all preventive services that have a rating of A or B from the United States Preventive 

Services Task Force. For the latter, see Public Health Service Act §2713 (42 U.S.C. 300gg–13), added by ACA 

§1001(1), 45 CFR §§156.115(a)(4), 147.130.

22 Center for Consumer Information and Insurance Oversight (CCIIO), “Information on Essential Health Benefits 

(EHB) Benchmark Plans” (undated), https://www.cms.gov/CCIIO/Resources/Data-Resources/ehb.html#review 

benchmarks.

23 Laura Skopec, et al., “Essential Health Benefits: Comparing Benefits in Small Group Products and State and 

Federal Employee Plans,” ASPE Research Brief, HHS Assistant Secretary for Planning and Evaluation, December 2011, http://aspe.hhs.gov/health/reports/2011/MarketComparison/rb.shtml.

24 As explained in our Roadmap to ACA implementation, this prohibition would increase the total number of covered services if insurers feel constrained against reducing rehabilitation visits significantly below the amounts 

that were covered in the past.

25 HHS, Notice of Benefit and Payment Parameters for 2016, Final Rule at 10811.

26 This section of the roadmap does not discuss several provisions within the EHB regulation for prescription 

drugs that go beyond issues of the medicines that the plan covers. Such issues include (1) transparency 

requirements for formularies and (2) rules for access to retail pharmacies within plan networks. See 45 CFR 

§156.122 (d) and (e).

27 45 CFR §156.122.

28 45 CFR §156.122(a)(3)(iii)(A), (D), (E), and (F).

29 45 CFR §156.122(a)(3)(iii).

30 45 CFR §146.136.

31 45 CFR § 156.115(a)(3).

32 ACA §2001(c), adding Social Security Act §1937(b)(6) (42 U.S.C. 1396u–7(b)).

33 For a good summary of parity requirements, see Sarah Goodell, “Health Policy Brief: Mental Health Parity,” 

Health Affairs, April 3, 2014, http://www.healthaffairs.org/healthpolicybriefs/brief.php?brief_id=112. Further 

information about parity is available on websites for CCIIO at CMS, https://www.cms.gov/CCIIO/Programsand-Initiatives/Other-Insurance-Protections/mhpaea_factsheet.html; the Substance Abuse and Mental Health 

Services Administration, http://www.samhsa.gov/health-financing/implementation-mental-health-parityaddiction-equity-act; and the U.S. Department of Labor, http://www.dol.gov/ebsa/mentalhealthparity/.

34 Goodell, Health Policy Brief: Mental Health Parity.

35 ACA §1302(b)(4)(B), (C), and (D).

36 Govind Persad, “Priority Setting, Cost-Effectiveness, and the Affordable Care Act,” American Journal of Law & 

Medicine, (41) 119–165, 2015.

37 HHS, Notice of Benefit and Payment Parameters for 2016; Final Rule at 10821-22.

38 Ibid.

39 HHS, Nondiscrimination in Health Programs and Activities; Proposed Rule.

40 HHS, Notice of Benefit and Payment Parameters for 2016, at 10823.

41 CCIIO, “FINAL 2016 Letter to Issuers in the Federally-facilitated Marketplaces,” February 20, 2015, https://www.

cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/2016-Letter-to-Issuers-2-20-2015-R.pdf.

42 Ibid, p.38.

43 ACA §1301(a)(1)(C)(i).

44 As of January 2014, such states were Alabama, Missouri, Oklahoma, Texas, and Wyoming. See https://www.

cms.gov/cciio/programs-and-initiatives/health-insurance-market-reforms/compliance.html.

45 ACA §1311(e)(1)(B).

46 One unique issue involves the duty of P&T committees to ensure satisfactory drug formularies, discussed earlier. If a plan’s formulary fails to meet the regulatory standards that such committees are required to uphold, it 

is not clear whether the plan or its P&T committee would be the entity held responsible.

48 National Council on Disability
47 NAIC, “Health Benefit Plan Network Access and Adequacy Model Act,” October 2015, http://www.naic.org/

store/free/MDL-74.pdf; HHS, “Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment 

Parameters for 2017; Proposed Rule,” 80 Federal Register 75488 (December 2, 2015), http://www.gpo.gov/

fdsys/pkg/FR-2015-12-02/pdf/2015-29884.pdf.

48 Kaiser Family Foundation, “Status of State Action on the Medicaid Expansion Decision,” State healthfacts,

Dec. 2015, http://kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-theaffordable-care-act/.

49 42 CFR 440.335 (c)(2).

50 42 CFR 440.335 (f).

51 42 CFR 438.50(d)(3), cited in 42 CFR 440.335(f).

52 CMS indicated that “benefits option counselling,” as required by the proposed (and then withdrawn) 42 CFR 

435.917(b) and (c), must be made available to new enrollees into the income-based eligibility category. CMS, 

“Medicaid and Children’s Health Insurance Programs: Essential Health Benefits in Alternative Benefit Plans, 

Eligibility Notices, Fair Hearing and Appeal Processes, and Premiums and Cost Sharing; Exchanges: Eligibility 

and Enrollment,” 78 Federal Register 42160- 42322 (July 15, 2013).

53 42 CFR 435.901.

54 42 CFR 435.902.

55 CMS. “Medicaid Program; Eligibility Changes Under the Affordable Care Act of 2010. Final Regulations.” Federal 

Register. Vol. 77, No. 57. Friday, March 23, 2012. 17144; CMS. May 22, 2012. “Medicaid/CHIP Affordable Care 

Act Implementation. Answers to Frequently Asked Questions: Eligibility Policy.” http://www.medicaid.gov/

state-resource-center/FAQ-medicaid-and-chip-affordable-care-act-implementation/downloads/Eligibility-PolicyFAQs.pdf.

56 42 CFR 440.315(b).

57 CMS, Medicaid Program; Eligibility Changes Under the Affordable Care Act of 2010. Final Regulations.

58 In theory, someone who qualifies for disability-based Medicaid is ineligible for QHP subsidies. However, ACA 

regulations provide that unless and until someone eligible for QHP subsidies is found to qualify for Medicaid, 

such a person remains eligible for QHP subsidies.

59 One group can qualify for QHP subsidies with incomes below the specified FPL thresholds: namely, lawfully present noncitizens whose citizenship and immigration status make them ineligible for federally funded 

Medicaid coverage of non-emergency services.

60 Musumeci M. “The Affordable Care Act’s Impact on Medicaid Eligibility, Enrollment, and Benefits for People 

with Disabilities,” Kaiser Family Foundation, April 2014.

61 The text focuses on administrative renewal, which applies to all Medicaid categories. Another key renewal provision that affects all eligibility groups bars state Medicaid agencies from asking questions that are not needed 

to redetermine eligibility. See 42 CFR 435.916(e). Other ACA renewal provisions govern MAGI categories, but a 

state may extend them to non-MAGI groups as well, including those with people with disabilities. For example, if 

a state has partial information required for renewal but needs certain items from the beneficiary, the state sends 

the beneficiary a form pre-populated with the relevant information known to the state; the beneficiary is required 

to answer only the questions requesting additional information. Also, if a consumer is terminated for failing to 

provide the Medicaid agency with requested information, the consumer has 90 days in which to reinstate Medicaid eligibility by providing the missing information; and states may not require in-person interviews. See 42 CFR 

435.916(a)(3). Renewal regulations specifically addressing non-MAGI categories give states the ability to automatically renew findings of disability and blindness, pending new determinations by the relevant review panel. See 

42 CFR 435.916(b)(1) and (2). In addition to the above accessibility requirements, the renewal regulations specifically require renewal forms and notices to be accessible to people with disabilities. See 42 CFR 435.916(g).

62 42 CFR 435.916 (a)(2) and (b).

Monitoring and Enforcing the Affordable Care Act for People with Disabilities 49