
So EveryBODY Can Move laws took effect in five states on January 1, and not surprisingly there have been some hiccups in the early going. We heard from one reader who was told he couldn’t get coverage for a running prosthesis under the new law because his employer (and ergo his insurance plan) were based in a different state. Other cases have gotten snagged on the distinction between state-regulated versus federally regulated health plans, or over arcane terms such as “whole-body health” and “essential health benefit” (EHB).
SEBCM advocates knew all along there would be a learning curve, as O&P clinics and insurers figure out how to integrate the reformed prosthetic insurance regulations into their day-to-day workflow. But nobody was expecting a state government to declare much of the law unenforceable.
Unfortunately, that’s what happened in Colorado, which passed its SEBCM law more than 18 months ago. Last month, the state’s Division of Insurance (DOI) drafted a bulletin stating: “Carriers offering plans on the small and individual group markets are not required to include coverage for prosthetic devices for recreational activities for plans commencing in 2025” (emphasis added). That directly contradicted the DOI’s longstanding position on Colorado’s SEBCM law, to the great confusion and consternation of the law’s backers.
Although the DOI withdrew the bulletin on Friday, it’s still not clear whether the agency considers the underlying issue to be resolved—or whether (and when) it will implement the law as written. As a result, lawmakers and amputee advocates are still unsure whether a bill that passed with overwhelming support (it cleared the house and senate by an aggregate vote of 96-1) will be allowed to deliver the fiscal and health benefits it’s designed to.
They’ll be meeting with DOI officials on Wednesday, January 29, to hammer out next steps. Under a plain reading of the law, it’s hard to see any grounds for further delay; we’ll explain why below. But if wonky details aren’t your jam, just take away this lesson from Colorado’s experience: The hard work of reform doesn’t end with the governor’s signature. Advocates in the eight states with active SEBCM laws have months or years of work ahead of them to educate patients and practitioners, keep healthcare administrators honest, and reiterate the key principles of fairness and financial sanity.
For the much larger group of advocates in states that are still working to pass SEBCM legislation, the lesson is this: Even the most popular laws can run aground on bureaucratic shoals. Sweat the details, never let down your guard, and pace yourselves accordingly.
What Colorado’s Prosthetic Insurance Reform Law Says
Colorado’s SEBCM law (numbered HB 1136) included a clause that, as far as we can tell, doesn’t appear in any of the seven other SEBCM laws. It required DOI to get confirmation from the federal government that 1136’s requirements fall within the Affordable Care Act’s definition of “essential health benefits,” or EHBs. The clause was inserted out of concern that 1136 might be interpreted as creating an extra, non-ACA benefit—a luxury the state would have to pay for.
In a letter to the feds dated December 18, 2023, DOI stated its interpretation that 1136 did not create an additional benefit and therefore didn’t trigger any cost to the state. Rather, DOI argued, “1136 simply clarifies that those prosthetic devices used for that [physical and recreational] purpose have always been covered.” DOI requested confirmation of that interpretation within 60 days.
Nearly 12 months went by with no response. Then, in early December—almost a year after the date of the letter, and just a few weeks before the law was scheduled to take effect—DOI officials informed 1136’s supporters that its interpretation had not been accepted. The federal Department of Health and Human Services (HHS) had apprised DOI that 1136 does create an additional benefit, triggering onerus state costs. Accordingly, under the provisions of 1136, the agency had no other choice than to suspend full enforcement.
The decision stunned the Colorado legislators who’d supported 1136, carefully negotiated its language, and worked alongside DOI to obtain the feds’ blessing. As they sought clarification, they made multiple requests in late December and early January to see the correspondence between HHS and DOI so they could understand the feds’ reasoning and formulate an appeal. When that correspondence still hadn’t surfaced by early last week, reporters from Amplitude and a Denver TV news station reached out to the DOI seeking comment.
At which point, DOI backed off.
“Based on communications that we’ve gotten from the feds, we’re actually going to withdraw that bulletin, not finalize it, and go back and reevaluate how we approach this,” DOI spokesperson Vincent Plymell told Amplitude last Friday. A memo announcing the bulletin’s withdrawal was posted on DOI’s website yesterday.
We asked: Did HHS’s guidance to DOI change between December and now?
“That’s it,” Plymell told us. “We had one understanding of how they approach it, and we’ve since gotten communication from them that was different than that [previous] understanding. So now we’ve got to go back and reevaluate what this means.”
Did HHS change their mind, or was their first ruling simply in error?
“I don’t know whether it was in error,” Plymell said. “Our understanding was that they weren’t going to consider it as an essential health benefit. And they have since come back and said it’s on the state to make that determination. And that’s different than what we thought earlier. So now we’ve got to figure out what it all means, and where everything stands.”
What it seems to mean—and we’re not lawyers—is that 1136 takes full effect, under the plain text of the law. Subsection (14)(d)(IV) requires the DOI to implement 1136 in full under either of the following scenarios: A) the feds affirm DOI’s interpretation of 1136 re additional benefits, or B) the feds fail to respond at all. Scenario A seems to be in force: The feds left the interpretation up to the state, and the state (in its December 2023 letter) deemed 1136 to be an ACA-covered benefit that doesn’t trigger any additional state costs.
Lawmakers and advocates are meeting tomorrow with insurance commissioner Michael Conway to hit the reset button on this process. But unless DOI is considering a retreat from its 14-month-old interpretation, there doesn’t seem to be much to discuss. The bill must go into full effect under (14)(d)(IV).
We’ll update this article after we know what DOI’s intentions are.