Federal complaint against Blue Cross HIV pricing in NC closed with no penalties
The U.S. Department of Health and Human Services has closed a complaint and will not penalize Blue Cross and Blue Shield of North Carolina for placing most HIV medication in its most costly drug tier in 2022 and 2023.
This decision follows a complaint in Dec 2022 by the HIV+Hepatitis Policy Institute and North Carolina AIDS Action Network accusing the state’s largest insurer of discriminating against people with HIV by forcing them to pay more for drugs.
In a Feb 6. letter closing the complaint, the federal health department said that as a result of its investigation, Blue Cross NC “took several voluntary corrective measures” and because of this the department “was satisfied” and would be closing the complaint with “no further action.”
The groups in their complaint said that the insurer discriminated by placing nearly all standard HIV medications, including generic medications which are less expensive, in drug tiers with the highest out-of-pocket costs in its 2022 and 2023 market plans, as previously reported by The News & Observer.
Months later, in August 2023, Blue Cross NC published an update that showed it had changed its pricing formula for dozens of HIV treatment medications, allowing thousands of North Carolinians living with HIV to have lower out-of-pocket expenses.
The insurer said these formulary tiers were changed last April as part of a quarterly review process that also affected the tiers of certain non-HIV medications.
Blue Cross NC spokesperson Sara Lang said in an email that the company “is committed to ensuring our members have access to safe, effective and affordable prescriptions when they need them.”
Blue Cross NC stands “against discrimination of any kind, including discrimination based on health status, sexual orientation or gender identity and work with state and federal regulators to ensure our plans are in compliance with the law each year,” she added.
Frustration with decision
But the groups that filed the complaint were not satisfied with the federal response, citing the lack of consequences.
“While it was reassuring to know the OCR did formally investigate our complaint, it was incredibly disheartening and deeply concerning to see them let the state’s largest insurer get away with such blatant discrimination,” said Carl Schmid, executive director of the HIV+Hepatitis Policy Institute in an email.
“Without action to improve federal and state regulation, oversight, and enforcement such discriminatory practices will continue to happen in the future,” he said.
“Bad actors need to be punished,” said Veleria Levy, executive director of the North Carolina AIDS Action Network.
“I don’t understand how anyone with a straight face can say this drug tier placement was made based on cost and clinical effectiveness when among the drugs on the highest tiers were 19 low-cost, rarely used generic drugs. And on top of it, the regulators bought it,” she said in a press release.
The two HIV advocacy organizations also filed their complaint with the North Carolina Department of Insurance, but the groups said they have not received any response or communication from the state.
In September, NCDOI Spokesperson Jason Tyson told The N&O his department “backed off” from taking any potential further steps on the complaint after learning the federal health agency would address the issue. “We’re glad to see it resolved, and we didn’t want to duplicate any efforts,” Tyson said at the time.
After a complaint, if a violation of rights is deemed to have happened, the offender is granted time to correct it, according to the Office for Civil Rights, which handles these federal complaints.
If the violation is not corrected, the OCR can provide a corrective action plan which can include requiring changing policies, restoring lost benefits and more.
If the plan is not followed, enforcement proceedings can begin.
