Daniel Bruner & Kellan Baker
The Department of Health and Human Services (HHS) has released a proposed rule under the Affordable Care Act (ACA) that reinstates critical nondiscrimination protections for LGBTQ people and takes strong steps to ensure that people living with HIV can access essential medications.
In 2020, the Trump Administration removed sexual orientation and gender identity nondiscrimination protections from the regulations governing HealthCare.gov and the state-based Health Insurance Marketplaces, Qualified Health Plans, and insurance agents and brokers. The new proposed rule reestablishes those protections. Later in 2022, we expect the Biden-Harris Administration to further expand nondiscrimination protections for LGBTQI+ people in health care and health insurance via Section 1557 (also known as the “Health Care Rights Law”) of the Affordable Care Act.
The new proposed rule also states that health insurance plans cannot arbitrarily provide less coverage of treatment regimens needed by particular groups of people. This takes aim, for instance, at the practice of putting HIV treatments in a higher co-payment “tier”, requiring patients living with HIV to pay more for the medications that work best to help them manage their health. And in a ground-breaking move, HHS has declared that singling out gender-affirming treatments for coverage exclusions or restrictions is clearly discriminatory.
These protections are needed because experiences of discrimination and fear of mistreatment is a barrier to health care for many LGBTQI+ people. Strong civil rights protections and robust enforcement are needed to make sure LGBTQI+ people and people living with HIV are treated with dignity and respect by their insurers as well as their medical providers.
For transgender people in particular, finding health care providers with the clinical knowledge and cultural competence to provide gender-affirming care remains difficult, particularly in rural communities. For many transgender people, finding care has become more difficult as some states try to enact discriminatory laws that ignore the science on the benefits of gender-affirming care.
In our comments on the new proposed rule, we support HHS in re-establishing these critical nondiscrimination protections. We also encourage the agency to be clear about the importance of the following specific concerns for LGBTQI+ people and people living with HIV:
Gender-affirming medical services, including surgeries, are medically necessary and should be covered by insurers without discriminatory exclusions
Regulations prohibiting discrimination in ACA exchanges and Qualified Health Plans should also protect intersex people
Qualified Health Plans must include enough competent providers in network to meet the needs of LGBTQI+ people and people living with HIV
Covered telehealth services should be disclosed by plans because they are an important benefit for LGBTQI+ people
Our unabridged comments are available here. They were written in partnership with members of the LGBTQI+ Federal Health Policy Roundtable and the LGBTQIA+ Primary Care Alliance.
A note on why this work is important: Thanks to the Administrative Procedures Act (APA), people in America have the right to comment on the implementation of the laws and policies put out by all federal agencies. The APA requires agencies to justify their interpretation of the laws with reasoning and let interested people respond. By influencing the federal agency policies, responding to proposed rules is an important way that the Whitman-Walker Institute policy team advances healthcare access for LGBTQI+ people.
