The views expressed by contributors are their own and not the view of The Hill

Regulators can save lives by protecting medically vulnerable utility users

by Samuel Whillans, Charlie Harak and Peter Kahn, opinion contributors - 09/10/22 4:00 PM ET

Ronan Kotiya, Rupesh Kotiya, Siobhan Pandya — AP Photo/LM Otero
Ronan Kotiya, 11, removes a compression leg sleeve from his father Rupesh Kotiya as his mother Siobhan Pandya looks at their home in Plano, Texas, Sunday, April 10, 2022. Ronan helps care for his father who suffers from ALS and is dependent on a ventilator and around the clock care. Millions of Americans with serious health problems depend on children ages 18 and younger to provide some or all of their care at home. An exact number is hard to pin down, but researchers think millions of children are involved in caregiving in the U.S.

Peggy — a patient of Dr. Kahn — requires an oxygen concentrator, ventilator, and nebulizer in her home, critically important medical equipment. For people like Peggy who rely on specialized medical equipment for life support, having utility service disconnected can be life-threatening. While she struggles to make ends meet, her utility bill is always the highest priority. Living without oxygen or a ventilator is simply not an option.

Every year, millions of households are disconnected from utility service because they are unable to afford their monthly bills. Although utility shutoffs can be harmful for any household, they are especially dangerous for medically vulnerable individuals like Peggy. In some cases, disconnections due to bill non-payment have led to serious injury or death.

To avoid such tragic outcomes, most states offer some sort of protection against shutoffs for medically vulnerable individuals. However, a recent 50-state survey by the National Consumer Law Center (NCLC) found that “many of the existing state laws and regulations are overly narrow, create protections that are difficult to access and not widely known, or provide for an overly short period of protection.”

Recently disclosed data on Michigan’s medical protection programs provides a rare look into some of the challenges with existing programs. Michigan provides two types of protections for medically vulnerable people. So-called “critical care customers” — those who rely on life-supporting medical equipment and for whom loss of service would be “immediately life-threatening” — can apply for protection from utility shutoffs on an annual basis. Those who don’t meet the critical care criteria can still apply for a “medical emergency” exemption if they have a condition that would be aggravated by loss of service. This exemption lasts for a mere 21 days, however, and each person may receive protection only 3 times each year.

For both programs, the applicant must produce a signed certification from a health care professional. However, the decision whether to approve the application is ultimately made by the utility company. Moreover, key terms such as “immediately life threatening” are not defined, opening the possibility that utilities could interpret the rules restrictively.

In July, a working group run by Michigan’s utility regulator released data on implementation of the programs — and the numbers are alarming. DTE, an electric and gas company serving around 2.3 million customers in the Detroit area, rejected close to 70 percent of applications for the medical emergency program between 2019 and 2021. Consumers Energy, which serves around 6.7 million customers in the state, rejected around 1 in 3 applications over the same period.

Denial rates for the critical care program were more evenly matched but still troublingly high, with both companies rejecting around 35 percent of people seeking protection in 2021.

While it is not clear from the data why so many people in Michigan are being denied protection, it is ultimately beside the point. When decisions regarding medical protections are made by entities other than a health care provider with the best interest of the patient in mind, unnecessary suffering can result.

Common-sense reforms can significantly improve medical protection programs like those in Michigan, saving lives. First and foremost, medical professionals should be solely responsible for determining whether a person’s condition puts them at risk from a shutoff. In other words, a medical professional’s certification that a person meets the criteria should be dispositive.

If a dispute does arise, the utility should be required to formally contest the application before the utility regulator. If the company substantially challenges the customer’s physician, it should be required to present testimony from an independent third-party medical expert. This approach would shift the burden to the utility to justify denials, easing the pressure on the person experiencing medical difficulties.

Other best practices identified in the NCLC report can further improve these programs. For example, application forms should be short, easy to understand and fill out, and available in multiple languages. More and higher-quality data reporting, ideally by zip code, is also critical to understand what is happening and why.

Regulators and utilities could also explore ways to automate enrollment — for example, by coordinating with health care providers to provide automatic protection to patients that receive life-supporting medical equipment.

In addition, utilities and regulators should consider ways to address any debt that accumulates while people are enrolled. Although medical protection programs eliminate the immediate threat of a shutoff, monthly charges continue to accrue during the protection period. If the household falls behind on payments, debt can accumulate to unmanageable levels. That problem requires other solutions, like offering discounted energy rates for customers with home medical equipment or providing pathways out of debt through debt write-off programs.

For medically vulnerable individuals like Peggy, continuous access to utility service can be a matter of life and death. With the increasing complexity of medical equipment and the movement to shift healthcare to a home setting, we anticipate that the need for medical protections will grow significantly over time. Ensuring continuous access to utility service in these circumstances is not only a matter of sound public health but also basic human rights.

Sam Whillans is the co-director of the Yale Environmental Protection Clinic at Yale Law School and a fellow at the Natural Resources Defense Council. He works on issues related to climate, housing, and utility access and affordability. The above information is provided for identification purposes only; any views expressed here do not represent the views of the Yale Environmental Protection Clinic, Yale Law School, or NRDC.

Charlie Harak is senior attorney for energy and utilities issues at the National Consumer Law Center. He represents consumers before regulatory agencies, testifies at legislative hearings, and provides legal and policy counsel to low-income advocates, legal services lawyers, and government officials. He is the co-author of “Protecting Seriously Ill Consumers from Utility Disconnections: What States Can Do to Save Lives Now” (Feb. 2021).

Dr. Peter Kahn is a fellow in the Section of Pulmonary, Critical Care and Sleep Medicine at Yale School of Medicine. He graduated from the Albert Einstein College of Medicine with honors and his M.P.H. from the Johns Hopkins Bloomberg School of Public Health in the department of Health Policy and Management. Dr. Kahn’s research has focused on health policy with a particular interest in the impact of climate change and utilities on health policy. Follow him on Twitter @PeterKahnMD