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Trump’s Proposed Rollback of Nondiscrimination Protections Under the ACA’s Section 1557. Wayne Turner, Senior Attorney NHeLP’s Washington D.C. Office September 8, 2019. About NHeLP.
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Trump’s Proposed Rollback of Nondiscrimination Protections Under the ACA’s Section 1557 Wayne Turner, Senior Attorney NHeLP’s Washington D.C. Office September 8, 2019
About NHeLP • National non-profit committed to improving health care access and quality for underserved individuals and families • State & Local Partners: • Disability rights advocates – 50 states + DC • Poverty & legal aid advocates – 50 states + DC • Offices: CA, DC, NC • Join our mailing list at www.healthlaw.org • Follow us on Facebook & Twitter @nhelp_org
ACA nondiscrimination protections • Market reforms (e.g, no preexisting conditions exclusions, no lifetime or annual caps) • Essential health benefits – benefit design must not discriminate based on “present or predicted disability, degree of medical dependency, quality of life, or other health conditions” • QHPs – no marketing or benefit design that “discourages persons with significant health needs from enrolling” • Section 1557 – no discrimination in health programs or activities receiving federal financial assistance
Section 1557 of the Affordable Care Act • Broad nondiscrimination protection • First time health care discrimination is prohibited based on: • sex; • gender identity, including transgender individuals; and • sexual stereotyping • Reinforces and expands longstanding protections for race, ethnicity, national origin, age & disability • Allows enforcement through administrative and judicial complaints
ACA Section 1557 – Applicability • any health program or activity any part of which receives federal funding; • any health program or activity that is administered by an Executive agency; and • any entity created under Title I of the Affordable Care Act (including health insurance marketplaces) • This expands upon many existing civil rights law such as Title VI/Sec. 504 which only applied to those receiving federal funding or Title IX which only applied in education
Changes to Applicability– Part 1 • Limits the number of federal health programs subject to §1557 • 2016 regulations -- § 1557 applies to any health program or activity administered by HHS • 2019 NPRM -- § 1557 applies only to federal health programs and activities administered by an agency established by Title I of the ACA, contrary to the intent and design of the law
Changes to Applicability – Part 2 • Limits the extent to which § 1557 applies to health insurance companies • 2016 regulations – any entity principally engaged in providing health care is subject to § 1557 if any part receives federal financial assistance • 2019 NPRM -- declares that an entity “principally engaged in providing health insurance shall not be considered to be principally engaged in providing health care” (emphasis added) • exempts much of the plans, products, and operations of most health insurance companies from § 1557’s nondiscrimination protections
Protections on the Basis of Sex • Section 1557 prohibits discrimination on the basis of sex including: • Pregnancy status including termination of pregnancy • Childbirth and related medical conditions • Sex stereotyping • Gender identity • The 2016 implementing regulations did not include new religious exemptions but did not displace existing federal refusal laws
Protections for Transgender Persons • § 1557 prohibits discrimination based on sex, including gender identity • Abuse/mistreatment from health care providers • Coverage exclusions for gender affirming care • Franciscan Alliance v. Azar • Challenged gender identity and pregnancy status (including termination of pregnancy) as part of sex discrimination • Judge Reed O’Connor issued nationwide injunction on HHS enforcement of regs • No final decision (yet) • Court decisions finding that gender identity protections are statutory • Prescott v. Rady Children's Hosp. • Flack v. Wisconsin Dept. of Health Srvs. • Boyden v. Conlin • Tovar v. Essentia Health
Protections for LGB Persons • § 1557 prohibits discrimination based on sex, including sex stereotyping: • Proposed rule eliminates sex stereotyping and purges references to “sexual orientation” in other regs including Medicaid managed care, Essential Health Benefits, Qualified Health Plans, Programs for All-inclusive Care for the Elderly (PACE)
2019 Proposed Regulation • The 2019 proposed regulation seeks to limit protections on the basis of sex: • Erases protections for LGBT individuals • Incorporates Title IX’s religious exemptions to the sex discrimination provision • Includes exemptions on abortion services and additional refusal laws that restrict access to abortion services
Attacks on People with HIV/AIDS, Disabilities & Chronic Illness
2014 HIV Discrimination Complaint • Florida Silver plans – • Inadequate formularies • Failed to cover standard treatments (single tablet therapy) • Missing commonly used HIV meds • HIV drugs on highest tiers • Generics on Tier 5 • High cost sharing (incl. co-insurance) • Limits and restrictions • Does 1557 protect against discriminatory benefit design? • ADA safe harbor • National standards, monitoring, and enforcement • OCR vs. CCIIO vs. State regulators
Other examples of potentially discriminatory benefit design from HHS • Coverage exclusions (contrary to standard of care) • Cost sharing (high co-pays, co-insurance for certain treatments or services) • Medical necessity definitions (recovering lost function vs. preventing loss) • Drug formularies (highest cost sharing tiers, access to “specialty” drugs through mail order only) • Visit limits (limiting number of rehabilitative visits without regard to medical practice • Benefit substitution • Utilization management (step therapy regardless of medical evidence)
Protections for People with Disabilities & Chronic Illness • § 1557 prohibits discrimination on the basis of disability including • Prohibition on discriminatory plan benefit design and marketing Current regulations: [A covered entity shall not] have or implement marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability in a health-related insurance plan or policy, or other health-related coverage. 45 C.F.R. § 92.207
Attacks on Individuals with Limited English Proficiency (LEP)
Demographics • Over 66 million people speak a language other than English at home, over 21% of the population • Over 25 million (8.5% of the population) speak English less than “very well,” and may be considered LEP • 8.5 million children under age 19 live in a household with at least one LEP parent • About 25% of “marketplace” enrollees are LEP SOURCES: American Community Survey, 2017; Table S1603, Characteristics of People by Language Spoken at Home, American Community Survey 1-Year Estimates, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_1YR_S1603&prodType=table; Table S1601, Language Spoken at Home, American Community Survey, 1-Year Estimates, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_1YR_S1601&prodType=table.
Taglines • 2016 – taglines on all “significant” documents and notices in top 15 languages in a state • 2019 – no taglines required on any documents • NPRM says this saves $3.1B • Complaints by insurers and pharmacy benefit managers that “significant” documents was too broad and they were including taglines with every document (EOB, notice, etc.) • Tagline requirements may still exist in other federal regulations – e.g. Medicare Part D (Rx program)
Who’s Covered? • Changes focus from individual to entity • 2016 – a covered entity shall take reasonable steps to provide meaningful access to each LEP individual eligible to be served or likely to be encountered • 2019 (proposed) – any entity operating or administering a health program or activity shall take reasonable steps to ensure meaningful access to such programs/activities by LEP individuals • When language services must be provided, they must be: • Free of charge • Be accurate and timely • Protect the privacy and independence of the individual with LEP
Outlook for 2019 Legal Challenges?
Wayne Turner, turner@healthlaw.org www.healthlaw.org @nhelp_org @nhelp_org