Legislation Proposes LGBTs Not Discriminated in ACA Health Care

AIDS Service Organizations and policy experts are pleased over recently proposed regulations by the U.S. Department of Health and Human Services that implement the Affordable Care Act's (ACA) ban on discrimination in health care services and expands it to include sex stereotyping and gender identification.�

"We are exceedingly pleased that this regulation specifically includes protections against discrimination in health care, including new protections on the basis of sex," said Elizabeth G. Taylor, National Health Law Program (NHeLP) executive director. "This marks a significant step toward full and effective implementation of the Affordable Care Act's groundbreaking nondiscrimination protections, intended to provide equal health care to all people."

The proposed regulation implements the ACA's Section 1557, which applies existing federal civil rights laws prohibiting discrimination on the basis of race, color, national origin, sex, age or disability to health care plans and programs that receive federal funds. The proposed regulation:�

� Confirms that gender identity discrimination is a form of sex discrimination, and includes requirements for insurers to cover medically appropriate services for transgender individuals seeking care;�

� Reinforces broad protections for persons with limited English proficiency and persons with disabilities, particularly noting that language services and auxiliary aids must be provided along with modern information technology; and�

� Addresses discriminatory practices by health insurers in benefit designs, marketing, and cost sharing -- issues raised by NHeLP in its pending HIV discrimination complaint with The AIDS Institute.�

The proposed regulation also recognizes that private individuals can go to court when they are being discriminated against in health care settings. "These private enforcement provisions are critical to ensuring people can get help when and if the federal agency is not taking action," said Mara Youdelman, NHeLP DC managing attorney.�

The proposed regulation was published September 8 and will stay open for comments until November 6. NHeLP will be submitting a comprehensive set of comments and working to ensure discrimination based on sexual orientation is included in the final regulation alongside gender identity and sex stereotyping. They will urge the Administration to move promptly after the end of the comment period to finalize the regulations so as to ensure effective implementation of this crucial new civil rights protection.

Center for American Progress Executive Vice President for External Affairs Winnie Stachelberg also praised the proposed regulations released by the U.S. Department of Health and Human Services under Section 1557 of the Affordable Care Act, or ACA. Among other critical protections, this proposed rule confirms that the Affordable Care Act's ban on sex discrimination in health care includes discrimination based on gender identity and sex stereotyping.

As we saw from the recent introduction of the Equality Act by more than 200 members of Congress, the charge is growing across the country to eradicate the discrimination that LGBT people and their families continue to encounter in fundamental areas of everyday life, such as health care. These regulations are a critical component of making the right to affordable health coverage and high-quality health care a reality for everyone in America, including LGBT people and their families. We look forward to working with the Department of Health and Human Services to finalize robust regulations codifying these vital protections and to ensure that sexual orientation is explicitly included alongside gender identity and sex stereotyping in the final rule.

Although Section 1557 has been in force since the law's passage in March 2010, the release of this proposed rule is a critical component of ensuring that all Americans are able to access the health coverage and care they need without encountering discrimination on the basis of their race, color, national origin, age, disability, or sex, including gender identity and sex stereotyping.

Research from the Center for American Progress indicates that many lesbian, gay, bisexual, and transgender, or LGBT, people -- especially transgender people -- experience rampant discrimination in health insurance, leaving many uninsured. LGBT people seeking health care also frequently report discrimination, such as a provider refusing to treat them, being verbally abusive, or acting in a physically rough or violent manner.

Among other provisions, the proposed rule:

� Prohibits insurance plans from categorically excluding coverage for transgender individuals

� Protects access for transgender individuals to medically necessary health care services and appropriate accommodation according to their gender identity in sex-segregated facilities

� Prohibits discrimination against any individual -- including lesbian, gay, and bisexual individuals -- on the basis of stereotypical notions of femininity or masculinity

We are pleased that the long-awaited non-discrimination rule has finally been proposed," said Carl Schmid, Deputy Executive Director of The AIDS Institute. "While the proposal does an adequate job of defining discriminatory practices by insurance plans for some individuals, it does not define discriminatory practices in plan benefit design as it relates to beneficiaries with chronic conditions who rely on prescription medications and other healthcare treatments.� The AIDS Institute and others have provided countless examples of marketplace plans that employ discriminatory benefit design by placing all medications to treat a certain condition on the highest cost tier, not covering certain medications, imposing excessive medication management tools, and charging patients high cost sharing."

The AIDS Institute and NHeLP filed a discrimination complaint in May 2014 against some issuers in Florida for employing these types of practices. To date, OCR has not acted upon that complaint.

"We are still looking forward to OCR's decision on our discrimination complaint and its enforcement of Sec. 1557 against the issuers named and the practices raised in the complaint," said Schmidt. "In the meantime, we expect the proposed rule will galvanize the patient community and their concerns. Hopefully, the final rule will address the needs of all patients, particularly those with chronic health care conditions, as they engage in the insurance market."
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