Combatting Sex Discrimination
with the ACA
Dania Palanker
Senior Counsel
February 5, 2016
ACA reduces sex discrimination
No more gender rating
No pre-existing condition exclusions
Maternity coverage as essential health benefit
Essential health benefits must meet the needs
of women
Section 1557 prohibition of discrimination on
the basis of sex
Section 1557:
Groundbreaking civil rights law
• First time federal law prohibits sex
discrimination in health care:
 Pregnancy
 Pregnancy related conditions
 Sex stereotypes
 Gender identity
 Sexual orientation
What are covered entities?
• Any health program or activity that:
 Receives federal financial assistance
 Is an entity is established under Title I of the ACA
 Is a program or activity administered by an
executive agency
Examples of covered entities
• Health insurance issuers
• Health care providers
• State and local governments
• Federal health programs
• Health insurance exchanges and co-ops
Must a particular health plan comply
with 1557?
Health insurance issuers offer many
products
Third Party
Administrator
Services
Plan
Fully Insured
offered
Employer
on
Exchange
Individual Market
Medicare
Managed Care
Medicare
Advantage
QHPs
If any of these products receive
federal financial assistance
Third Party
Administrator
Services
Plan
Fully Insured
offered
Employer
on
Exchange
Individual Market
Medicare
Managed Care
Medicare
Advantage
QHPs
Then all plans and TPA services are
covered by 1557
Third Party
Administrator
Services
Plan
Fully Insured
offered
Employer
on
Exchange
Individual Market
Medicare
Managed Care
Medicare
Advantage
QHPs
Many employer health benefit plans must
comply with 1557
Receives
federal
financial
assistance and
is primarily a
health program
or activity
Receives
federal
financial
assistance for
health program
or activity but
has other
programs
Receives
federal
financial
assistance for
employee
health benefits
Third Party
Administrator
of self-insured
plan is a
covered entity
Under proposed
1557 regulation
Many employer health benefit plans must
comply with 1557
Receives
federal
financial
assistance and
is primarily a
health program
or activity
Receives
federal
financial
assistance for
employee
health benefits
Receives
federal
financial
assistance for
health program
or activity but
has other
programs
Third Party
Administrator
of self-insured
plan is a
covered entity
Based on our
comments to
proposed
regulations
What types of benefit designs are
prohibited by 1557 and the ACA?
Pregnancy discrimination is sex
discrimination
Examples of pregnancy discrimination in benefit
design:
 Excluding dependent children from maternity
coverage
 Not covering emergency maternity services
out of network
Other Discrimination Protections in
Essential Health Benefits
 May not discriminate because of age, disability, or
expected length of life
 Must take into account the health care needs of
diverse segments of the population, including
women, children, persons with disabilities, and other
groups
 Must not deny services based on age, expected
length of life, present or predicted disability, degree
of medical dependency, or quality of life
Age Discrimination for Infertility
Treatment
 Age limits are a common method to limit coverage of
infertility treatment
 Such limits can violate 1557 and the EHB
requirements
“the Insurance Department has reviewed the age
limit of 40 and under and has determined infertility
treatment may be clinically effective for ages above
40, and is therefore requiring carriers to remove the
age limits on infertility benefits”
-Connecticut Insurance Department
Beyond insurance and benefit design
Preventing Sex Discrimination by
Healthcare Providers
Under 1557 providers cannot do the following in
a discriminatory manner:
 be hostile to patients
 refuse to serve an individual
 provide different levels of treatment
 provide care based on sex based assumptions
 make gender based assumptions about family
involvement
Preventing Sex Discrimination in
Enrollment
Under 1557, navigators, enrollment assistors,
agents and brokers cannot:
 Refuse to assist someone because of their sex
 Create a hostile environment because of a
person’s sex
 Use stereotypes about the proper roles of men
and women when providing assistance
 Make derogatory remarks, shame, or refuse to
assist a woman because of a pregnancy-related
decision
Improving Regulations
From NWLC’s comments on proposed 1557 regulations:
HHS should have authority over all covered
entities, programs or activities
No religious exemptions
Further specify forms of sex discrimination
prohibited
Broaden application to employer health benefit
plans and third party administrators
Strengthen protections in health insurance
coverage
What can you do?
Contact NWLC if you suspect sex discrimination
in health care
Contact insurance regulators for individual
market or fully insured plans
State regulators, CCIIO or OPM depending on plan
File claims with HHS OCR
May need to contact OCR in other agencies
Dania Palanker
Senior Counsel
National Women’s Law Center
[email protected]
202-588-5180