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HHS 2023 Payment Parameters Do Not Finalize Proposed Nondiscrimination Rule


· 5 minute read


· 5 minute read

PPACA; HHS Notice of Benefit and Payment Parameters for 2023; Final Rule, 45 CFR Parts 144, 147, 153, 155, 156, and 158, 87 Fed Reg. __ (May 6, 2022)

Final Rule

Fact Sheet

HHS has finalized regulations that amend and refine several benefit payment parameters and other Affordable Care Act (ACA) insurance market and Exchange related rules for 2023. Most provisions are aimed specifically at insurers and Exchange regulators, including requirements for Exchange network adequacy reviews, special enrollment period verifications, risk-based employer-sponsored coverage verifications in the context of advance payment of premium tax credits, and indirect quality improvement activity (QIA) exclusions from medical loss ratio calculations. Notably, the regulations do not finalize the proposal that would have amended the ACA guaranteed-availability regulations to explicitly prohibit health insurers, agents, brokers, and Exchanges from discriminating against individuals in marketing practices and benefit designs based on sexual orientation and gender identity (see our Checkpoint article).

The proposed regulations would have reinstated the pre-2020 guaranteed-availability protections that prohibited marketing practices or benefit designs that discriminated based on sexual orientation or gender identity—in addition to race, color, national origin, present or predicted disability, age, sex, expected length of life, degree of medical dependency, quality of life, or other health conditions. In 2020, ACA Section 1557 regulations repealed rules defining discrimination “on the basis of sex” to include discrimination based on gender identity for purposes of Section 1557, and, in the process, also removed references to sexual orientation and gender identity as prohibited bases of discrimination under the guaranteed-availability regulations (see our Checkpoint article). In issuing the final 2023 parameters, HHS advised that it is developing a proposed rule implementing ACA Section 1557 that will address prohibited discrimination in health coverage based on sex, so it would be “most prudent” to address the nondiscrimination proposal related to guaranteed availability “at a later time” to ensure the rules are consistent.

EBIA Comment: HHS submitted a draft notice of proposed rulemaking addressing Section 1557 to the Office of Management and Budget on March 22, 2022. In the meantime, it will continue to interpret and enforce the Section 1557 prohibition on discrimination “on the basis of sex” as including discrimination on the basis of sexual orientation and gender identity (see our Checkpoint article). For more information, see EBIA’s Health Care Reform manual at Sections XIV.B (“Guaranteed-Availability and Guaranteed-Renewability Rules”) and XXXIV.A (“Section 1557 Nondiscrimination: Grounds Prohibited Under Federal Laws”). See also EBIA’s HIPAA Portability, Privacy & Security manual at Section XVIII.B (“Guaranteed-Availability Rules”). And don’t miss next week’s webinar, “Surprise Billing Protections Under the No Surprises Act: What Group Health Plans Should Know” (live on 5/11/2022).

Contributing Editors: EBIA Staff.

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