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« They said WHAT? Debunking ACA Myths | Main | Court's Decision on Contraceptive Mandate: What Does It Mean? »

Next steps to end sex discrimination in health care

Empowered by new federal regulations barring sex discrimination in health care, women’s health and LGBTQ health advocates are considering how best to get the rules enforced. In other words, how do we make the promise of nondiscrimination in health care a reality?

Regulations implementing Section 1557 of the Affordable Care Act (ACA), released earlier this month by the U.S. Department of Health and Human Services (HHS), prohibit health care discrimination on the basis of race, color, national origin, sex, age or disability. The rules interpret “sex” in such a way as to bar discrimination against people based on gender identity, pregnancy and sex stereotypes.  

Does that mean all health care providers and insurers will immediately end sex discrimination? No, the 1557 rule is only the first big step in the process of ending such discrimination.

First, the rules must go into effect. For most purposes, that will happen 60 days after publication in the federal register, which would mean mid-July of this year. However, health insurers have until the start of their next new plan year after January 1, 2017, to make needed changes to their plan benefit designs. For example, they must remove categorical exclusions of coverage for transgender care, such as hormones and gender transition surgeries. So, health coverage won’t be changing overnight.

What are the next steps, then? Advocates working at the state and federal levels to win enforcement of new rules for health coverage have often used three main strategies:


  • Filing complaints with regulators. Individuals who suffer what they believe is discrimination can file complaints with agencies responsible for enforcing new rules. In the case of apparent violations of the 1557 rules, most complaints (but not all) would go to the HHS Office of Civil Rights. Health care advocacy organizations will be poised to help with the filing of these complaints, both to aid individuals and to establish patterns of noncompliance that need to be addressed.

    Groups representing transgender and gender non-conforming individuals have already been filing such complaints on the federal level, and in those states (such as New York) where transgender coverage bulletins had been issued prior to the 1557 federal regulations. Lesbian, gay and bisexual individuals and organizations are likely to file complaints using the 1557 provision barring discrimination based on “sex stereotypes” in order to better establish that sexual orientation falls under this category. HHS stopped short of ruling out discrimination based on sexual orientation, but explicitly invited complaints filed under the sex stereotyping ban of the rules.

    • Exposing non-compliance through “secret shopper” calls, listening sessions with affected consumers and other types of research. Women’s health organizations –including several Raising Women’s Voices regional coordinators -- have succeeded in blowing the whistle on  insurer non-compliance with the ACA’s contraceptive coverage rules by calling health plans, asking about which types of birth control are covered and whether there are co-pays, and then taking their findings to regulators. For example, in the state of Washington, RWV’s regional coordinator, Northwest Health Law Advocates, worked with NARAL WA to survey health plans and identify problems with their contraceptive coverage. As a result, the Washington Attorney General’s Office forced a major insurer to stop misleading women about no-cost IUD coverage. Some women’s health advocates – most recently in Maryland and Vermont – have taken their work one step further by getting state legislation passed to close loopholes in the ACA contraceptive coverage rules. RWV-NY is part of a coalition working to pass similar legislation in New York.

    On transgender coverage compliance, RWV-NY, as co-chair of the Health Care for All NY LGBT Task Force, organized three listening sessions around the state to investigate compliance with a 2014 state policy requiring private insurers to cover all medically-necessary treatment for gender dysphoria. During these sessions, state regulators heard individuals, medical providers, legal experts and health advocates describe how transgender and gender nonconforming enrollees had to appeal coverage denials regularly, often requiring outside legal help to demonstrate how an insurer was not in compliance. Follow-up work with state regulators to address these problems is underway.

    • Seeking issuance of follow-up guidance interpreting the rules. Using findings of insurer violations of the HHS contraceptive coverage rules, women’s health groups succeeded in getting HHS to issue follow-up guidance last year. In some states, LGBT advocates have won issuance of follow-up guidance explaining how insurers should be following state transgender coverage policies. In California, the agency regulating private insurers (DMHC) followed up that state’s transgender heath discrimination ban by issuing guidance to define the terms cosmetic and reconstructive, consistent with state law, and tell insurers they must omit lists of reconstructive and cosmetic surgeries that are always excluded, as well as remove lifetime limits on coverage.

Raising Women’s Voices will be working on implementation of the 1557 non-discrimination rules, both at the federal and st ate levels. Stay tuned for updates!

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