The term "employee health benefit program" could include wellness programs, clinics and long-term care benefits.

The U.S. Department of Health and Human Services (HHS) seems to be avoiding a battle over gender-based insurance premiums in a new batch of draft antidiscrimination regulations.

HHS officials have not put a provision clearly changing or expanding federal insurance pricing restriction in the proposal, Nondiscrimination in Health Programs and Activities (RIN 0945-AA02). 

The HHS Office for Civil Rights and the HHS Office of the Secretary developed the new draft regulations to implement Section 1557 of the Patient Protection and Affordable Care Act of 2015. PPACA Section 1557 bans discrimination on the basis of race, color, national origin, sex, age or disability in “any health program or activity” that receives federal financial assistance. 

See also: Lawmakers push for PPACA antidiscrimination regulations

Officials have proposed defining “health program or activity” to include “employee health benefit program,” and “employee health benefit program” to include “an employer-provided or sponsored wellness programs”; an “employer-provided health clinic”; or “long-term care coverage or insurance provided or administered by an employer, group health plan, third party administrator or health insurance issuer.”

See also: Group challenges gender-based LTCI rates

HHS could classify an entity as receiving federal financial assistance if it’s an HHS program, or if it’s an insurance company or other entity that participates in an HHS program, such as the Medicare Advantage program or the PPACA public health insurance exchange program. If any part of an entity received federal financial assistance, HHS would try to apply the antidiscrimination rules to all of the entity’s health-related operations.

If, for example, “XYZ Insurance Company” sold health insurance through the PPACA public exchange system, and XYZ also administered employer-funded wellness and long-term care plans for employers, HHS would try to apply the antidiscrimination rules to the wellness and LTC plan administration operations.

The proposed list of discriminatory actions prohibited includes efforts to discriminate by denying access to health coverage, limiting coverage, imposing additional cost-sharing requirements, or using discriminatory marketing practices. HHS would also ban any moves to shut out transgender individuals, or to keep transgender individuals from getting services related to their birth gender.

HHS has not included gender-based pricing in the list of actions to be banned.

In the preamble to the proposed regulations, officials note that PPACA “prohibits many health insurance issuers from charging higher premiums based on sex.” Officials do not say how the current draft relates to the ban on sex-based premiums, or whether they plan to develop any other regulations or batches of guidance dealing with sex-based premiums.

HHS officials based the new draft in part on responses to a request for information they issued in 2013.

See also: HHS wants health discrimination stories

Through that notice, officials asked members of the public for real-world examples of health-related discrimination. More than half of the 402 responses received came from transgender people who described personal experiences with discrimination, officials say.

In addition to the widely publicized sections in the draft regulations that provide explicit protection for transgender individuals, officials have also included sections that could expand protections for people with disabilities and people with a limited ability to use English.

The draft regulations would prevent covered entities, such as health insurers or hospitals, from requiring people with limited English proficiency to bring their own interpreters. HHS also wants to prevent covered entities from relying on bilingual minor children to communicate with people with limited English proficiency, “except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter immediately available.”

The draft regulations also create new notice requirements.

Penalties would be based on the penalty provisions in Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.

The draft regulations are set to appear in the Federal Register Sept. 8. Comments will be due Nov. 6.