ACA 1557

In regard to Section 1557 of the Patient Protection and Affordable Care Act (42 USC 18116), the interpretation of transgender health care coverage, and even definitions of transgender, and gender identity appears to be in flux and at the interpretation of the executive branch and the Department of Health and Human Services (HHS). Furthermore interaction between insurance coverage depends on the World Health Organization (WHO) definitions and ICD codes surrounding gender identity, and gender incongruence as well as the Diagnostic and Statistical Manual (DSM) definitions of gender identity, gender dysphoria, gender identity disorder, and numerous other terms.

It is possible that this complex interaction of definitions will enable difficulties with accessing gender affirming care.

Open questions:

• Where does law and insurance intersect here?
• Will coverage continue under the current and future climate?
• Will coverage continue under a Republican president.
• Post federal government adoption of ICD-11 will likely fall into the executive administration following the first Biden term, and the corresponding interpretation.

Thoughts and Background:

• The DSM will continue to be needed is one takeaway as a bulwark in case of poor interaction with existing state laws that require transgender health care to be covered as a “mental disorder” versus a medical disorder via the DSM.
• The United States Department of Health and Human Services, which oversees the adoption and of ICD codes is a cabinet-level executive branch department of the federal government.
• HHS is led by the “US Secretary of HHS”. Admiral Rachel Levine, who reports to the Secretary of HHS, is openly transgender and the Assistant Secretary for Health (ASH). This is the head position of the Office of the Assistant Secretary for Health (OASH). Organizational structure here. https://en.wikipedia.org/wiki/United_States_Department_of_Health_and_Human_Services The ASH serves by the appointment of the president and at the pleasure of the president.
• In 2020 we saw HHS Final Rule provisions that would have removed healthcare protections for transgender people. This would be in regard to Section 1557 of the 2016 rule.

Research

https://www.sequoia.com/2022/01/hhs-final-rule-makes-significant-changes-to-the-affordable-care-acts-section-1557-anti-discrimination-protections/ “Gender Identity Under the Final Rules, insurers will no longer be required to cover gender transition services and will no longer be prohibited from denying claims or imposing benefit restrictions because an individual is transgendered. Further, covered entities will no longer be required to treat individuals consistent with their gender identity (as far as it relates to Section 1557, though other federal laws or state laws may still apply).”

Even though the Final Rule eliminates protections for gender identity, courts have ruled in favor of individuals who alleged gender identity discrimination based on the plain text of Section 1557 of the ACA, and not on the 2016 Rule’s expanded definition. Thus, the elimination of the explicit protections for gender identity may not necessarily mean that individuals cannot sue for gender identity discrimination. The Bostock decision does not overturn Section 1557’s elimination of transgender protections, but it will likely bolster arguments by parties challenging the new Final Rules. In light of the Bostock decision, employers should also be cognizant that group health plan provisions excluding services based on an individual’s sexual orientation or gender identity could possibly be grounds for discrimination under Title VII, since this could be seen as employment discrimination based on their sex.”

Under Biden “The HHS’ Office for Civil Rights said it would interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include discrimination on the basis of sexual orientation and discrimination on the basis of gender identity.” https://www.foxnews.com/politics/biden-hhs-reverses-trump-era-policy-transgender-health-rights This is shaky at best. “In 2020, Trump’s HHS finalized a regulation that overturned Obama-era protections for transgender people against sex discrimination in health care. That policy shift redefined gender as a person’s biological sex, whereas an Obama-era regulation defined sex as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.””

https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html https://public3.pagefreezer.com/content/HHS.gov/31-12-2020T08:51/https://www.hhs.gov/about/news/2020/06/12/hhs-finalizes-rule-section-1557-protecting-civil-rights-healthcare.html <- the old HHS press release

References