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BY ROD TAYLOR

RIDER HEALTH CARE ALERT

The Problem
For years, some employers have denied health care coverage to motorcyclists. These health care denials have ranged from refusal to cover injuries sustained by employees in accidents to wholesale denial of health care coverage to the rider and his or her dependents. In concert with other motorcyclist advocacy organizations, MRF lobbied the Congress to prohibit rider discrimination by employee health plans. The result was the nondiscrimination provisions of the Kennedy-Kassebaum Act, the Health Insurance Portability and Accountability Act of 1996 (HIPAA). In a colloquy to codify Congressional intent, the U.S. Senate ensured that "beneficiaries are not excluded from health care coverage because they participate in activities such as motorcycling...." (Senate floor debate, April 28, 1996; colloquy between Senators Moseley-Braun and Kassebaum.) Regulations interpreting and enforcing HIPPA were to be promulgated by the Departments of Labor and Health and Human Services. Those regulations were not released until January 5, 2001.

Last minute reversal
When the regulations were released on Jan. 5, just before Clinton left office, motorcyclists discovered that the agencies involved had reversed the intent of the law. The new regulations went into effect despite the efforts of the AMA, Motorcycle Riders Foundation, ABATE of Illinois, ABATE of Wisconsin and other motorcyclists who took the time to comment on the proposed rules, and to contact members of Congress asking that they urge the new Bush administration to change the discriminatory parts of the regulations.
"These rules make the entire law meaningless," said Edward Moreland, AMA vice president for government relations. "They open the door to the elimination of health coverage for all types of legal recreational activities, from motorcycle riding to running or walking." The AMA now plans to join with other motorcycling organizations and recreation groups to go back to Congress in hopes of getting a new bill passed reinstating the original intent of the health-insurance bill. "We've already been in contact with congressional offices to see who might be the best choice to spearhead an effort in Congress to pass a law to stop this discrimination," Moreland said.
Moreland noted that U.S. Health and Human Services Secretary Tommy Thompson's office indicated Thompson didn't feel he had the authority to change the language of the rules, and that he was reluctant to do anything that might interfere with states' rights to determine the benefit coverages in their states. Meanwhile, Moreland urged all motorcyclists and others to check their health-insurance policies to see whether they would receive health-care benefits if they are hurt while participating in legal recreational activities.
Following a March 2001 personal visit paid on HHS Secretary Tommy Thompson by ABATE of Wisconsin accompanied by the Motorcycle Riders Foundation and the American Motorcyclist Association, the former Wisconsin Governor and avid motorcyclist ordered and participated in an extensive review of the law, particularly the statute and the report language of the Health Insurance Portability and Accountability Act of 1996.

"While we regret the outcome, we can only thank Governor Thompson for his personal commitment in leading this exhaustive review," said Thomas C. Wyld, MRF Vice President for Government Relations. "I am fully confident he explored every possibility and required that his staff dig as deeply as possible to find legal justification to disallow the rule. Our case was compelling, our grassroots effort superb, but there is a limit to what any government official can do, and that limit is set in the language of law."
"Governor Thompson and his staff briefed us personally on this outcome," observed MRF President Tom Pauley, "and we are grateful for this high level of open communication. One of the lessons learned here is that there is a reluctance on the part of Congress past and present, to set minimum federal health benefits, and this reluctance is reflected in the law. All major federal health care actions have never repealed the central cornerstone of the McCarren-Ferguson Act of the 1940s: that insurance, particularly benefits, shall be regulated by the states. "In short, while federal opportunities may arise, the challenge that lies before us is to advance benefit protection for motorcyclists at the state level."
The language in this particular law indicates that individuals who participate in motorcycling and other activities cannot be excluded from enrolling in group market coverage or be charged a higher premium rate. The statute also states, however, that the prohibition on discrimination with respect to eligibility shall not be construed to require a group health plan to provide particular benefits.

A Call to Arms
The new rules state that an employer can't refuse health-care coverage to an employee based on participation in legal recreational activities after working hours, but that health-care benefits can be denied for injuries suffered while taking part in those activities. The rules, issued jointly by the Internal Revenue Service, the Pension and Welfare Benefits Administration, and the Health Care Finance Administration, directly contradict the intent of Congress in passing this law.
In fact, language in the Congressional Record at the time noted that the law "is intended to ensure, among other things, that individuals are not excluded from health-care coverage due to their participation in activities such as motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing and other similar activities."
The AMA and other motorcycling groups worked hard to get that language included in the Congressional Record after uncovering incidents in which employers were discriminating against motorcyclists, leaving them without coverage when they were involved in recreational activities. The AMA noted at the time that some health plans would provide health-care benefits for employees involved in illegal activities, like driving a car while drunk, but cut off those benefits from many legal activities.
The challenge that lies before us is to advance benefit protection for motorcyclists at the state level. Contact your ABATE legislative action team to determine what actions are being considered in your state and what you can do. In the meantime, all motorcyclists and others need to check their health-insurance policies to see whether they would receive health-care benefits if they are hurt while participating in legal recreational activities.
Finally, every effort should be made by all rights groups and enthusiast organizations to reestablish the original intent of HIPPA. We can do this by organizing all motorcycle rights groups with other recreational groups to right this grievous wrong.

Make no mistake, the effort to exclude motorcyclists is but the thin end of the wedge. Think about the effect of this type of decision on other recreational activities like recreational sports leagues, bicycling, hiking, jogging, camping, swimming, skiing, skating, and the like. Grade school and high school sports could also be affected.
We need to do something to stop this NOW! The only way to make a change is for all of us, not just motorcyclists, but everyone who enjoys recreational activities, to band together to address these issues, work with legislators and others to propose new regulations, and if necessary, to fight these restrictions in court. Watch this space for more information on what you can do to help.