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HHS 2023 Proposed Payment Parameters Would Prohibit Discrimination Based on Sexual Orientation and Gender Identity


· 5 minute read


· 5 minute read

PPACA; HHS Notice of Benefit and Payment Parameters for 2023; Proposed Rule, 45 CFR Parts 144, 147, 153, 155, 156, and 158, 87 Fed Reg. 584 (Jan. 5, 2022)

Proposed Rule

Fact Sheet

HHS has proposed regulations that would 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, verification of employer-sponsored coverage in the context of advance payment of premium tax credits, and quality improvement strategy standards (with implications for medical loss ratio calculations). Notably, the proposals would also amend 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.

HHS explains that pre-2020 guaranteed-availability regulations 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. However, in 2020, ACA Section 1557 regulations not only repealed rules defining discrimination “on the basis of sex” to include discrimination based on gender identity for purposes of Section 1557 (see our Checkpoint article), but also revised the guaranteed-availability regulations by removing references to sexual orientation and gender identity as impermissible bases of discrimination. If finalized, this proposal would reinstate the pre-2020 nondiscrimination protections with respect to guaranteed availability.

EBIA Comment: In addition to these proposed changes to the guaranteed-availability regulations, HHS issued a notice in May 2021 announcing that, despite the 2020 revisions to the Section 1557 rules, it will 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). The 2020 Section 1557 regulations are involved in ongoing litigation (see, e.g., our Checkpoint article), and HHS has indicated that it intends to re-propose the Section 1557 regulations in 2022. 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”).

Contributing Editors: EBIA Staff.

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