HLAA-Washington Advocates for People with Hearing Loss
We educate and inform lawmakers and other leaders about what people with hearing loss need in order to live equitable lives.
Read on to learn about our successes and ways you can help.
Insurance Coverage for Hearing Aids —
It Could Happen
By John Waldo and Trevor Finneman, reprinted from the HLAA-California September 2020 newsletter, with permission from Mr. Waldo and gratitude to Grace Tiessan and HLAA California.
As we all know, hearing aids are frequently necessary, always expensive, and almost never covered by insurance. The prospect of significant out-of-pocket costs is one of the main reasons why only about 15% of the people who could benefit from hearing aids actually use them.
That could be about to change dramatically. A stunning decision in July from the Ninth Circuit Court of Appeals interprets the non-discrimination provisions of the Affordable Care Act (ACA, also known as Obamacare) as potentially barring commercial insurance policies from excluding coverage for professionally prescribed hearing aids and associated visits.
The case, called Schmitt v. Kaiser, was brought in federal court in Seattle in 2017 by two individuals who were insured by Kaiser health plans. Those plans exclude any coverage for hearing aids, including bone-anchored aids, and for examinations, leaving insured individuals to pay 100% of the cost. (The Kaiser plans do cover cochlear implants.) The complaint said that excluding coverage for hearing aids discriminates against people with disabilities, and that such discrimination violates the ACA.
The trial court dismissed the case. It said that the ACA requires insurance policies to cover “essential health benefits,” defined by Congress. The court said those enumerated benefits must be offered in a nondiscriminatory manner, meaning, for example, that if a plan covers a particular type of surgery for adults, it cannot deny coverage to someone on the basis of a developmental disability. But the court said the ACA does not require insurers to offer benefits not defined as “essential,” and because hearing aids are not defined as essential, then Kaiser is not obligated to pay for them.
The trial court agreed that the ACA prohibits benefit designs that intentionally discriminate against people with disabilities. But it said the hearing-aid exclusion is a neutral policy that applies both to people with disabilities and people without. As the court put it, “the exclusion of most treatments and services related to hearing loss and hearing care precludes coverage for a broad array of conditions, only some of which rise to the level of a disability under governing law.”
The Court of Appeals reversed that decision. It said the enumerated “essential health benefits” are minimums only, and that insurers must still design policies that do not discriminate on the basis of disability.
The Court of Appeals did not say coverage is required, but sent the case back to the trial court to explore the question of whether excluding hearing-aid coverage predominately impacts people with disabilities or whether it sweeps up people “whose hearing is merely impaired.” The claimants might be able to make such a showing, the appeals court said, by including in an amended complaint “facts showing how the needs of hearing disabled persons differ from the needs of persons whose hearing is merely impaired.” Conversely, the court said the exclusion might pass muster if cochlear implants, which the insurance policies do cover, “serve the needs of most individuals with a hearing disability.”
That directive is something that should be quite achievable. We all know that very few people have hearing loss of such severity that they need (or qualify for) cochlear implants. We know also that hearing aids are not very comfortable, that they are perceived as unfashionable, and that a lot of people feel stigmatized as old when they wear aids. The reality, as we (and our partners and families) know, is that you don’t get hearing aids unless and until your hearing loss is materially affecting your day-to-day life. So it appears that the complaint can easily be amended to include information that the appeals court believes could be decisive. (Attorneys for the Seattle plaintiffs have accepted John Waldo’s offer to help with that work by channeling our collective expertise about hearing loss, hearing aids and cochlear implants).
Kaiser filed a petition asking that the decision be reconsidered en banc, which involves many more judges than the three that originally heard and decided the case. (In most circuits, that means all the judges, but because the Ninth Circuit is so large, en banc hearings are in front of 11 judges chosen at random). If no judge thinks the decision merits reconsideration, the petition is denied without comment, and without giving the other side the opportunity to respond. Here, though, the court did order a response, which means that at least one judge thinks the decision needs another look.
The critical issue in this case is how courts should interpret a fairly old (1985) Supreme Court decision involving a section of the Rehabilitation Act, a statute predating the Americans with Disabilities Act (ADA) which prohibits disability-based discrimination in programs that receive federal funds. The question in that case, called Alexander v. Choate, was whether the State of Tennessee discriminated against people with disabilities by providing Medicaid coverage for only 14 days of inpatient hospital care, a limitation that impacted people with disabilities more severely than others. Despite that disparate impact, the Supreme Court said the 14-day limitation was okay because it applied both to people with and without disabilities, and that people with disabilities still had “meaningful access” to the hospitalization benefit even though they might not have an equal outcome.
Kaiser believes that decision means that it need not offer insurance coverage for any particular benefit, but must only ensure that everyone has access to those benefits that the policies do provide – a credible interpretation of the Alexander case that some commenters summarize as saying that that the disability laws guarantee access but do not regulate the content of policies. Other commenters argue that Alexander doesn’t go that far. They point out that the 14-day limitation actually met the needs of 95% of the population, which might indeed constitute “meaningful access,” but that denying all coverage for services used almost exclusively by people with disabilities would be going too far.
We should learn by early September whether or not a rehearing will be granted. Should the decision stand, this case presents at least the possibility of an enormous leap forward for millions of people with hearing loss in all jurisdictions that are part of the Ninth Circuit Court of Appeals, including California, and we want to see it happen.
Tell the National Parks We Need Hearing Loops!
The National Park System is updating its ADA plan for Klondike Gold Rush National Historical Park and other local national parks. Captions are included in the proposed plan, but not hearing loops.
Find out more about the campaign, and then make a public comment. Let the parks know about your experiences and challenges with hearing at national parks, how loops are the preferred and most-loved (and sanitary!) ALS, and what a difference loops will make for you.
For more information and advice on what to say, read our public informational brief.
Consumer Hearing Aid Education Bill Passed
In 2019, HLAA-WA advocated for SB 5210, the Telecoil/Bluetooth Consumer Education Act. As introduced, the bill would have required any person who engages in fitting or dispensing hearing aids to inform their customers – prior to fitting – of the uses, benefits and limitations of Telecoil-enabled and Bluetooth-enabled hearing aids.
The bill was amended. It now requires the Department of Health to establish regulations for what any person who engages in fitting or dispensing hearing aids should inform their customers about.
The bill was passed in final form on April 19, 2019 and will be signed by the Governor soon. Read the final bill here.
HLAA-WA thanks bill sponsor Sen. Guy Palumbo and companion bill sponsor Rep. Laurie Dolan as well as all of the legislators who voted for the bill on final passage.
For background about the need for this legislation, and a good information piece to share with your legislators, see this flier: Support Telecoil-Bluetooth Legislation
Tips for Legislative Advocacy: 10 Tasks For Effective Legislative Advocacy
Do You Like the Mic?
People with hearing loss often can’t hear in meetings because there is no amplification. For those who say, “we don’t need a microphone; my voice is loud enough”, here is the rebuttal. Take a look at this video and pass it along to everyone who needs to see it.
We worked with Rooted In Rights to help make this video. HLAA member Kimberly Parker stars. Watch below.