With the election behind us, many assume the uncertainty surrounding the Patient Protection and Affordable Care Act at the federal level has vanished.

But whether the law succeeds in making health care more affordable and whether people's lives will actually be improve now depends on how it is implemented. For instance, the Affordable Care Act is supposed to guarantee that insurers cover so-called essential health benefits, or EHB. However, those essential benefits have yet to be fully determined by the Department of Health and Human Services (HHS). What it decides will have a huge impact on how well the law works.

At The AIDS Institute, we and so many other health advocates for other diseases and illnesses fight for people whose lives depend on having access to prescription medicine. And when it comes to ensuring that patients have adequate drug coverage, the current proposal from the Obama Administration raises some concerns.

As it stands now, proposed EHB requirements mandate that insurers cover a "target number" of drugs in each class of pharmaceuticals. However, insurers can choose not to cover certain drugs that may have unique and important therapeutic advantages. It is imperative that EHB requirements include a system to review the quality of each insurance plan's drug coverage-not just dictate the quantity of drugs covered.

The EHB proposal will result in the large discrepancies in drug coverage requirements at the state level. In some states more than 1,000 drugs will have to be covered, while others will require fewer than half that number.
Although the quality of coverage can't be judged solely by the number of drugs covered, it is troubling to see  such significant variation across states. To make sure all patients' needs are met, we suggest that plans be
required to cover substantially all drugs in each class. Every patient is unique and has differing drug needs.

The proposed rule also fails to require new drugs be covered that come on the market after this year. We recommend that insurance plans be required to update their formularies using the same method as the Medicare prescription drug benefit, known as Medicare Part D. It requires that independent committees make decisions on coverage of new products within 180 days of approval by the Food and Drug Administration. At the same time, though, insurance plans should be required to continue covering older therapies, so that patients won't fear being forced to switch medicines.

Another problem with the proposed EHB requirements is that they use the US Pharmacopeia (USP) system of drug classification to determine which medicines are covered. But the USP only updates its drug classification system every three years, and it does not recognize combinations of drugs, which have become the standard of care in some areas. Either changes need to be made to the USP, or EHB requirements should be changed so that patient coverage reflects the latest medical innovations and a broader array of drug treatments.

And while the proposed EHB rules state that a plan "must have procedures in place that allow an enrollee to request clinically appropriate drugs not covered by the health plan," what such an appeals process would look like is unknown. Again, we recommend the procedure used by Medicare Part D, which calls for an expedited, time-limited appeals process, and grants patients access to needed medicines while decisions are pending.

The proposed rule also raises concerns that patient cost-sharing won't be sufficiently limited, which could potentially make lifesaving medication unaffordable. Specifically, the HHS is proposing that a patient's out-of-pocket spending on out-of-network treatments not be counted as part of his or her cost-sharing. Instead, though, the HHS should specify that copayments and coinsurance on out-of-network services will count towards the out-of-pocket maximum.

In addition, the proposed EHB rules fail to lay out any standards to ensure that patients will have access to specialty care, without which many will suffer. Nor has the HHS set down any mechanism to assess, monitor and enforce the law's non-discrimination measures against insurers who unjustly deny care and drug coverage. And finally, EHB requirements don't limit insurers' use of "utilization management techniques"--such as step-therapy, prior authorizations, and quantity limits--which can be used to deny access to treatment.

We sincerely hope the HHS addresses these vital issues. For our part, The AIDS Institute and other patient groups are deeply committed to doing whatever we can to make sure health care reform is implemented properly. But its EHB rules must include clear-cut patient protections, and comprehensive drug coverage that makes sure the most vulnerable get what they need to remain healthy.

Carl Schmid is Deputy Executive Director of The AIDS Institute, a national
nonprofit organization that promotes research, public policy, advocacy and
education on HIV/AIDS and related healthcare issues.