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Some States Highlight Bans on Insurer Discrimination Against LGBT People

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Officials in California, New York and Illinois have rushed to tell health insurers in their states that their states continue to have regulations protecting lesbian, gay, bisexual, transgender and queer (LGBTQ) people against discrimination in health care and health insurance.

The U.S. Department of Health and Human Services (HHS) is in the process of removing prohibitions on discrimination based on gender identity in federal health care programs from federal regulations. HHS officials contend that the provisions, which were added during the administration of former President Barack Obama, to implement Section 1557 of the Patient Protection and Affordable Care Act, exceed the scope of HHS officials’ statutory authority.

(Related: HHS to Let Agents Reject Gay Medicare and Exchange Plan Prospects)

PPACA Section 1557 does not mention any specific class of protected people directly. It instead directs regulators to look at four other federal civil rights laws. Some of those laws refer to discrimination based on sex, but none refer explicitly to sexual orientation or gender identity.

HHS is also changing the discrimination regulations affecting people with low ability to use English, or “low English proficiency.”

California Insurance Commissioner Ricardo Lara has issued a notice to California health insurers stating that health insurers must continue to comply with California’s antidiscrimination laws.

“Despite the federal government’s harmful stance towards the LGBTQ+ community, in California, we respect the right to health care regardless of gender or sexual orientation,” Lara says in his statement. “I will continue to fight to ensure all Californians, regardless of their sexual orientation, gender identity, and English proficiency, have access to quality health care and will work to vociferously defend this right in court.”

Lara pointed to this week’s U.S. Supreme Court’s 6–3 ruling in favor of workers suing over allegations of employment discrimination based on sexual orientation and gender identity, in Bostock v. Clayton County, Georgia, as a sign the administration of President Donald Trump is on the wrong side on the LGBT issue.

In New York state, Gov. Andrew Cuomo put out a statement hailing the Supreme Court ruling and condemning the HHS regulation change.

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The Bostock ruling “serves as a direct rebuke to the Trump administration’s decision last week to roll back health care nondiscrimination protections for LGBTQ people and is a reminder that regardless of who you are or who you love – discrimination is immoral, illegal, and incompatible with the idea of America,” Cuomo says in his statement.

In Illinois, Robert Muriel, the insurance director, issued a bulletin stating Illinois Department of Insurance position on health coverage for transgender, nonbinary, and gender nonconforming individuals.

The department says many Illinois state laws prohibit discrimination based on actual or perceived gender identity or sexual orientation.

Some individual excepted benefit policies and individual grandfathered health plans may be able to exclude benefits for gender affirmation surgery, but even those policies may not discriminate among individuals who are in the same class of risk, Muriel says.

“No company shall refuse to issue any contract of insurance or decline to renew a contract because of the sex, sexual orientation or marital status of the insured or prospective insured,” Muriel says. “Further, no group health insurance plans may discriminate on the basis of an insured’s or prospective insured’s actual or perceived gender identity or on the basis that the insured or prospective insured is a transgender person.”

A health insurer or plan may not “exclude from, limit, charge a higher rate for, or deny a claim for coverage for the surgical treatments for gender dysphoria,” or make moves ”denying or limiting coverage, or denying a claim, for services due to an insured’s actual or perceived gender identity or for the reason that the insured is a transgender person, including, but not limited to, health care services that are ordinarily or exclusively available to individuals of one sex when the denial or limitation is due only to the fact that the insured is enrolled as belonging to the other sex or has undergone, or is in the process of undergoing, gender transition.”

— Read Supreme Court LGBT Ruling May Bring Health Benefits Fights: Alito and Thomason ThinkAdvisor.

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