HHS recently issued a proposed rule intended to provide greater protections for LGBTQ individuals enrolled in health plans, overturning a Trump-era regulation which has been challenged in court proceedings.
This proposal would address network adequacy requirements and other concerns associated with benefit design, and further establish group health plans as covered entities under Section 1557.
What is section 1557?
Federally funded entities cannot categorically refuse treatment to any patient on the basis of birth sex assignment, gender identity or sexual orientation or limit their access to medically necessary gender affirming care. Individuals protected under this provision also cannot be denied coverage for certain HIV-preventative services like Prep (preexposure prophylaxis) and should be included within group health plans offering such plans with PrEP coverage as part of their benefit packages.
The proposed rule clarifies that Section 1557 prohibits discrimination on the basis of sex in addition to existing civil rights laws such as Title VI of the Civil Rights Act of 1964 (race, color and national origin), the Age Discrimination Act of 1975 (age), and Title IX of the Education Amendments of 1972 (sex). Furthermore, this proposal aligns with Supreme Court decisions prohibiting discrimination based on sexual orientation and gender identity.
The rule would extend nondiscrimination requirements to health insurers receiving federal financial assistance such as premium tax credits and subsidies under the Affordable Care Act (ACA), Medicare Part B funding being an example. Furthermore, this rule would revoke its previous interpretation that only applied when HHS played a part in providing or administering them.
Who is subject to section 1557?
As well as insurers that directly sell qualified health plans on exchanges, other health care providers fall under section 1557’s purview. These include Medicare Advantage organizations, Part D plan sponsors, Medicaid managed care organizations and any private-sector entity participating in federal Medicaid program; while TPAs that develop documents and policies for self-insured group health plans. The proposed rule also covers them all.
This new rule would change HHS’ interpretation of “health programs and activities” to explicitly include contracts of insurance (such as ACA subsidies). HHS would no longer import Title IX exceptions for religiously affiliated organizations into its interpretation of Section 1557 which is referenced within underlying civil rights laws.
This rule strengthens protections against discrimination based on sexual orientation or gender identity, consistent with the Supreme Court decision in Bostock v Clayton County. Furthermore, it clarifies that the Affordable Care Act’s antidiscrimination provisions apply across a broad array of federally funded health care services and facilities.
What is the penalty for non-compliance?
The Biden administration has proposed reinstating and strengthening nondiscrimination protections for health care services and coverage based on race, ethnicity, language, age, disability, sex (gender identity sexual orientation pregnancy), including Section 1557 application across federal healthcare programs including Medicaid CHIP Programs for All Inclusive Care Elderly. In line with Supreme Court’s Franciscan Alliance ruling the 2022 proposal also rejects an Obama-era interpretation that allowed discrimination based on sex where it does not cause more than de minimis harm.
As part of its expansion, the 2022 rule clarifies that covered entities may still claim religious exemption from Section 1557 where this claim complies with existing laws such as RFRA or conscience protections. Furthermore, group health plans do not become subject to Section 1557 simply because they contract with an insurance issuer that receives federal financial assistance.
What is the process for filing a complaint under section 1557?
Individuals who believe they have experienced discrimination in accessing health care can file a complaint with HHS’ Office for Civil Rights. Since ACA passage, this office has been receiving, investigating, and resolving complaints regarding nondiscrimination provisions under section 1557 of the Affordable Care Act (ACA).
On June 19th 2020, the Biden administration unveiled revised regulations prohibiting discrimination on the basis of race, color, national origin, sex identity or disability from health programs and activities that receive federal financial assistance. These new rules incorporate Title VI and IX prohibitions from the Civil Rights Act 1964 in regards to sexual offenses as well as existing civil rights laws like Age Discrimination Act or Americans with Disabilities Act if applicable.
Regulations allow covered entities to claim religious exemption; however, due to a court decision in Franciscan Alliance which overturned HHS’ 2016 rule’s inclusion of gender identity and sexual orientation into enforcement actions against specific religious plaintiffs involved in this case.
