The U.S. Department of Health and Human Services (HHS) has completed nondiscrimination regulations that might have a major effect on insurers that sell public exchange plans but might not have much of an effect on others.
The HHS Office for Civil Rights (OCR) and the HHS Office of the Secretary posted a 362-page preview version of the final regulations today. The official version of the final rule, which is based on a draft released in September, is set to appear Wednesday in the Federal Register.
HHS officials developed the rule to implement Section 1557 of the Patient Protection and Affordable Care Act of 2010 (PPACA). Section 1557 prohibits “covered entities” from discriminating based on race, color, national origin, age or disability. HHS is interpeting the ban on sex discrimination to include a ban on discrimination based on gender identity.
A covered entity cannot use benefits limits, deductibles, marketing practices or any other means to discriminate against the protected classes of people, with just a few exceptions, officials say in the preamble to the regulations.
A covered entity may be able to make age-based distinctions, when a state, federal or local government body allows that, officials say. A covered entity may also be able to set up sex-specific programs, such as a sex-specific research study, if it can provide “exceedingly persusasive justification” that the program is “substantially related” to achieving an important health-related or scientific goal, officials say.
With regards to gender identity concerns, for instance, a covered entity insurer or benefit plan could limit access to hysterectomies for all enrollees without violating the nondiscrimination regulations. But it could not use restrictions on hysterectomies to discriminate against transgender people, officials say.
In the regulation and the preamble, HHS does not appear to give a clear explanation of whether or how these guidelines apply to efforts to set insurance premiums.
Most requirements in the regulations are set to take effect 60 days after the official publication date. The rules affecting insurance benefits are supposed to take effect Jan. 1, 2017.
HHS gives several complicated descriptions of how the regulations apply to insurers.
HHS officials say, specifically, that the requirements apply to the “federally facilitated marketplaces,” or PPACA public exchanges operated by HHS, and to state-based exchanges.
The requirements also apply to group health insurance arrangements provided by health insurers that receive federal financial assistance for at least part of their operations. The requirements apply directly to benefit plans sponsored by health care providers, health insurers, companies that operate federally supported health programs, and employers that receive federal financial assistance for their plans.
When the rules apply to employer-sponsored health benefits, they apply to all types of health-related benefits, officials say. Officials make a point of saying the rules apply to the kinds of ”excepted benefits” usually freed from PPACA and Health Insurance Portability and Accountability Act (HIPAA) rules.
“Excepted benefits include, but are not limited to: limited scope dental and vision plans; coverage only for a specified disease or illness; and Medicare supplement health insurance,” officials say. “We are not exempting benefits excepted from [PPACA] market reforms and HIPAA portability requirements from the final rule. If an issuer providing these benefits receives federal financial assistance and is principally engaged in providing health benefits, all of its operations will be covered by the rule; if it is not principally engaged, we will apply the rule to its federally funded health programs and activities.”