Major Payers Find HHS Finalized Nondiscrimination Rule Too Narrow

Major payers and payer organizations objected to the finalized HHS nondiscrimination rule—Affordable Care Act Section 1557—saying that the rule eliminates much of the specific language in the original rule, particularly relating to gender and sexual discrimination.

The finalized version limits the scope of the rule overall, a Health Affairs article pointed out.

Under the new rule, Section 1557 only applies to private payers’ lines of business that receive federal funding, such as Affordable Care Act health plans, Medicaid, Medicare Advantage, or Medicare Part D plans. Also dental plans and catastrophic plans that are on the state or federal health insurance marketplaces fall under the Section 1557 rule.

Whereas the previous 2016 version of the rule required at a minimum 180 private payers, Medicaid, Medicare, and student health plans, the Health Affairs article noted that the current version applies only to

• Any health program or activity that receives federal funding by HHS
• Any program or activity that takes place under Title I of the Affordable Care Act which established the federal and state health insurance marketplaces
• Any program or activity which occurs through an entity established by Title I of the Affordable Care Act (including federal and state health insurance marketplaces, some reinsurance entities, community health insurance councils)

In other words, the nondiscrimination rule no longer applies to HHS programs that are not under Title I, which includes

• The Centers for Disease Control and Prevention (CDC) non-Title I programs and activities
• Indian Health Service non-Title I programs and activities
• Substance Abuse and Mental Health Services Administration non-Title I programs and activities
• Any HHS programs not under the Affordable Care Act
• Medicare Part B
• Self-funded group health plans
• Federal Employees Health Benefits Program
• Church plans
• Excepted benefits
• Short-term limited duration plans (the only one explicitly called out in the fact sheet)

HHS also eliminated the entire definitions section. The department defended this move by arguing that these terms were already defined under other civil rights statutes. It further stated that the 2016 regulation was “overbroad” in allowing these civil rights statutes to apply to tax credits under Title I of the Affordable Care Act and clarified that the quality health plans on the marketplaces were still subject to the nondiscrimination rule.

The HHS fact sheet states that the rule protects the civil rights of individuals with disabilities and language barriers. The department requires that regulated plans participate and clarifies enforcement of this rule.

Section 1557 also cuts down on what the department found to be excessive provisions regarding sex and gender healthcare.

“The final rule does not provide a new definition of sex discrimination, and the 2016 Rule’s definition of ‘on the basis of sex’ is not included in this final rule because it exceeded the Department’s statutory authority,” the fact sheet explains.

Payers were not receptive of the new rule and found that the rule did not accomplish what HHS claimed. Instead, they found that the rule increased protections against discriminatory activities particularly against sexual and gender discrimination, as was predicted when the proposed rule came out in mid-2019.

Recent research showed that gender discrimination may be apparent in payer practices such as prior authorization, making it clear that these protections are needed.

“Every single American deserves affordable, quality health care regardless of race, color, national origin, sex, gender identity, sexual orientation, age, or disability,” Matt Eyles, president and chief executive officer of America’s Health Insurance Plan (AHIP), said in a statement.

“That is the firm commitment of AHIP’s members – which together serve hundreds of millions of Americans. We resolutely disagree with any attempt to remove protections in federal law that prohibit discrimination based on gender identity, sex stereotyping, and pregnancy status. We also firmly believe that non-English speakers should have ready access to health information.”

Blue Cross Blue Shield Association (BCBSA) joined AHIP in its disagreement with the department’s move.

“We disagree profoundly with the administration’s final rule removing protections from discrimination based on gender identity, sexual orientation and pregnancy status,” BCBSA said. “No one should have to fear experiencing discrimination when accessing health services.”

Provider organizations including the AMA have also taken a strong stance against the final rule.