HHS Proposed Regulations Barring Discrimination on Basis of Sex, Gender, Gender Identity, Race and National Origin, Disability, and Age Need Work: Deadline to Comment is November 9, 2015

Last month the federal Department of Health and Human Services (HHS) released a proposed rule implementing Section 1557 of the Affordable Care Act, which extends civil rights protections under Title VI, Title IX, the Age Discrimination Act, and the Americans with Disabilities Act (ADA), among others, to health programs that receive any federal funds.  No matter whether a given state operates its own exchange or if it is part of the federal marketplace, Section 1557 will apply to all health plans and the providers with whom they contract in every state—and it will apply to employer-based plans so long as that plan has insurance products serving populations that receive any federal funds, including Medicaid (Medi-Cal in CA) and premium tax subsidies. In short, Section 1557 should apply to virtually all plans and providers in California.

Longstanding California anti-discrimination law, the Unruh Civil Rights Act, already applies to plans and providers but the proposed federal protections add several important layers of protections.

What’s Positive in the Proposed Rule: Highlights

  • The rule’s new protections against sex discrimination apply to gender identity. Section 1557 is designed to protect women and LGBT individuals from discrimination not only in the health coverage they receive (this is handled in another ACA section) but also in the health care services they receive. Though the language in the rule needs to be strengthened around sexual orientation protections. The rule does, however, strengthen existing California law related to health care for transgender persons.
  • Insurance policies may not categorically exclude coverage for care related to gender transition, and access to facilities must be consistent with gender identity—the GLMA (Health Professionals Advancing LGBT Equality) applauds these provisions.
  • The rule specifies requirements for accessibility and effective communication with persons with disabilities and enhanced language assistance for people with limited English proficiency (LEP), though California’s laws on the latter are actually stronger (see also CPEHN’s overview of language assistance policies in California). Of course, there is always room for improvement on these issues—see CPEHN’s proposed improvements on these provisions of the rule.
  • The proposed rule specifies that individuals may seek legal remedies for any discrimination under Section 1557—a private right of action. This is important because we know that laws and regulations, no matter how well designed, are not always enforced properly, and that therefore setting legal precedence will be helpful. To this end, Harvard Law School’s Center for Health Law and Policy Innovation (CHLPI) is launching a litigation initiative—for details contact cshachar@law.harvard.edu.

What’s Missing or Weak in the Proposed Rule

  • Discriminatory benefit design: The rule falls short in defining discriminatory practices in plan benefit design and formulary tiers as it relates to people with chronic conditions who rely on prescription medications and other healthcare treatments. Federal regulations should go at least this far, says the AIDS Institute. AB 339 (Assemblymember Gordon) Prescription Drug Cost Sharing, sponsored by Health Access and supported by a broad range of consumer groups was signed into law last month by Governor Brown. AB 339 will require insurers and health plans to cap cost sharing for prescription drugs at $250 per month per prescription in most plans (or $500 in Bronze plans); cover medically necessary prescription drugs; prohibit placement of most or all drugs to treat a specific condition on the highest cost tiers of a formulary; requires formularies to be based on clinical guidelines and peer-reviewed scientific evidence as well as cost (learn more in our fact sheet).
  • Scope of protections based on disability. While HIV is protected as a disability, other conditions that may be disabling like rheumatoid arthritis and Hepatitis C are not protected under the proposed rule.
  • Sexual orientation protections. While the proposed rule’s long introduction states that “as a matter of policy, we support banning discrimination in health programs and activities not only on the bases identified previously, but also on the basis of sexual orientation”, the text of the proposed regulations never mentions sexual orientation. Gender identity, sex stereotyping, and “on the basis of sex” are all defined, but none of those definitions explicitly includes sexual orientation.

Tools for Participating in the Comment Period

The comments are due by November 9, 2015.

Angles for Comments

Health Access agrees with other consumer and community advocates that these issues related to benefit design have a discriminatory impact in practice, but the proposed rule falls short in addressing them:

  • Failure on the part of health plans and exchanges to include adequate information on the cost of covered medications, though existing California law, SB 1052 (Torres) of 2014, still being implemented, already requires health plans to include information on cost sharing in standardized information on formularies.
  • Due to the conflicting legal decisions about whether sexual orientation is protected by existing prohibitions on sex discrimination, Health Access recommends that the definition of “on the basis of sex” also include sexual orientation.

HHS is also asking specifically for comments on whether Section 1557 should include an exemption for religious organizations. Health Access strongly opposes exemptions that would allow discrimination based on religious views, particularly in view of the long history of both religious discrimination and discrimination by health care providers against LGBT individuals and families.

We look forward to working with partners on this crucial issue.

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