The Affordable Care Act (ACA) keeps evolving and revealing new facets. Recently, the U.S. Department of Health and Human Services (HHS) proposed regulations that spell out the implementation of ACA Section 1557. This section of the law prohibits discrimination in health programs on the basis of race, color, national origin, sex, age or disability.

The proposed rules aim to accomplish four main tasks:

• Harmonize protections provided by existing, well-established federal civil rights laws
• Outline gender identity discrimination as a form of sex discrimination
• Enhance language assistance for people with limited English proficiency
• Require effective communication for individuals with disabilities.

Let’s take a closer look at the new definitions of sex discrimination and gender identity.

Do these new rules apply to all health plans?

The short answer is no, but it appears that many plans will be affected. The proposed rules apply to any health program or activity that receives financial assistance from HHS, such as hospitals that accept Medicare patients or doctors who treat Medicaid patients. It applies to any health program that HHS itself administers. It applies to the public health insurance exchanges/marketplaces and to all plans offered by issuers that participate in those public exchanges. The rules are written broadly and include benefit plans that health care providers and insurers offer to their own employees even when these plans are self-funded. If an insurer receives any HHS funds, these rules apply to all the health plans offered by that health insurer, not only those sold through a public exchange. Employers that offer self-funded health plans may also be affected if they use a third-party administrator (TPA) that receives HHS funding. This would include TPAs that are part of health insurance companies, also known as administrative-services-only (ASO) providers, if those companies receive federal funding or operate a public exchange plan.

What are the protections against sex discrimination?

As defined in the new rules, sex discrimination for health care and health insurance includes, but is not limited to, discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy and recovery, childbirth or related medical conditions. In addition, the rules clearly state sex discrimination includes discrimination based on gender identity. An HHS fact sheet provides the following explanation of the protections:

• Individuals cannot be denied health care or health coverage based on their sex, including their gender identity.
• Individuals must be treated consistent with their gender identity, including access to facilities.
• Sex-specific health care cannot be denied or limited just because the person seeking such services identifies as belonging to another gender. For example, a provider may not deny an individual treatment for ovarian cancer, based on the individual’s identification as a transgender man, where the treatment is medically indicated.
• Explicit categorical exclusions in coverage for all health care services related to gender transition are facially discriminatory. Other exclusions for gender transition care will be evaluated on a case-by-case basis.

These proposed rules provide new protections for transgender individuals and those diagnosed with gender identity disorder or gender dysphoria. HHS expects the cost of extending coverage related to gender identity to be negligible. In addition to equal access to health care, these regulations require covered entities to provide adequate communication of these rights, adopt relevant grievance procedures and designate a responsible employee to coordinate compliance.

Before it releases the final regulations, HHS has asked the public to provide feedback on these proposals overall and on a couple of specific issues:

• The agency is committed to banning discrimination based on sexual orientation and would like input on how to incorporate those protections into the final rules.
• HHS is requesting comment on whether Section 1557 should include an exemption for religious organizations and what the scope of any such exemption should be.

When will these rules be in effect?

Technically, Section 1557 has been in effect since ACA was enacted in 2010, but these are the first regulations that provide details on how to implement this section of the law. Public comments on the regulations are due on or before November 9, 2015. After HHS reviews the comments received and crafts the final regulations, these rules will take effect 60 days after they are published in the Federal Register.

The International Foundation will keep you up to date—Keep an eye on resources found on ACA Central, ACA University and Regulatory Updates.

Kelli Kolsrud, CEBS
Director, Information Services and Publications at the International Foundation