Trump’s Proposed Rollback of Nondiscrimination Protections Under the ACA’s Section 1557

1. Trump’s Proposed Rollback of Nondiscrimination Protections Under the ACA’s Section 1557 Wayne Turner, Senior Attorney NHeLP’s Washington D.C. Office September 8, 2019

2. About NHeLP • National non-profit committed to improving health care access and quality for underserved individuals and families • State & Local Partners: • Disability rights advocates – 50 states + DC • Poverty & legal aid advocates – 50 states + DC • Offices: CA, DC, NC • Join our mailing list at www.healthlaw.org • Follow us on Facebook & Twitter @nhelp_org

3. Hierarchy of Law

4. ACA nondiscrimination protections • Market reforms (e.g, no preexisting conditions exclusions, no lifetime or annual caps) • Essential health benefits – benefit design must not discriminate based on “present or predicted disability, degree of medical dependency, quality of life, or other health conditions” • QHPs – no marketing or benefit design that “discourages persons with significant health needs from enrolling” • Section 1557 – no discrimination in health programs or activities receiving federal financial assistance

5. Section 1557 of the Affordable Care Act • Broad nondiscrimination protection • First time health care discrimination is prohibited based on: • sex; • gender identity, including transgender individuals; and • sexual stereotyping • Reinforces and expands longstanding protections for race, ethnicity, national origin, age & disability • Allows enforcement through administrative and judicial complaints

6. ACA Section 1557 – Applicability • any health program or activity any part of which receives federal funding; • any health program or activity that is administered by an Executive agency; and • any entity created under Title I of the Affordable Care Act (including health insurance marketplaces) • This expands upon many existing civil rights law such as Title VI/Sec. 504 which only applied to those receiving federal funding or Title IX which only applied in education

7. History of Section 1557

8. Changes in Section 1557’s Applicability

9. Changes to Applicability– Part 1 • Limits the number of federal health programs subject to §1557 • 2016 regulations -- § 1557 applies to any health program or activity administered by HHS • 2019 NPRM -- § 1557 applies only to federal health programs and activities administered by an agency established by Title I of the ACA, contrary to the intent and design of the law

10. Changes to Applicability – Part 2 • Limits the extent to which § 1557 applies to health insurance companies • 2016 regulations – any entity principally engaged in providing health care is subject to § 1557 if any part receives federal financial assistance • 2019 NPRM -- declares that an entity “principally engaged in providing health insurance shall not be considered to be principally engaged in providing health care” (emphasis added) • exempts much of the plans, products, and operations of most health insurance companies from § 1557’s nondiscrimination protections

11. Protections on the Basis of Sex • Section 1557 prohibits discrimination on the basis of sex including: • Pregnancy status including termination of pregnancy • Childbirth and related medical conditions • Sex stereotyping • Gender identity • The 2016 implementing regulations did not include new religious exemptions but did not displace existing federal refusal laws

12. Protections for Transgender Persons • § 1557 prohibits discrimination based on sex, including gender identity • Abuse/mistreatment from health care providers • Coverage exclusions for gender affirming care • Franciscan Alliance v. Azar • Challenged gender identity and pregnancy status (including termination of pregnancy) as part of sex discrimination • Judge Reed O’Connor issued nationwide injunction on HHS enforcement of regs • No final decision (yet) • Court decisions finding that gender identity protections are statutory • Prescott v. Rady Children's Hosp. • Flack v. Wisconsin Dept. of Health Srvs. • Boyden v. Conlin • Tovar v. Essentia Health

13. Protections for LGB Persons • § 1557 prohibits discrimination based on sex, including sex stereotyping: • Proposed rule eliminates sex stereotyping and purges references to “sexual orientation” in other regs including Medicaid managed care, Essential Health Benefits, Qualified Health Plans, Programs for All-inclusive Care for the Elderly (PACE)

14. 2019 Proposed Regulation • The 2019 proposed regulation seeks to limit protections on the basis of sex: • Erases protections for LGBT individuals • Incorporates Title IX’s religious exemptions to the sex discrimination provision • Includes exemptions on abortion services and additional refusal laws that restrict access to abortion services

15. Attacks on People with HIV/AIDS, Disabilities & Chronic Illness

16. 2014 HIV Discrimination Complaint • Florida Silver plans – • Inadequate formularies • Failed to cover standard treatments (single tablet therapy) • Missing commonly used HIV meds • HIV drugs on highest tiers • Generics on Tier 5 • High cost sharing (incl. co-insurance) • Limits and restrictions • Does 1557 protect against discriminatory benefit design? • ADA safe harbor • National standards, monitoring, and enforcement • OCR vs. CCIIO vs. State regulators

17. Other examples of potentially discriminatory benefit design from HHS • Coverage exclusions (contrary to standard of care) • Cost sharing (high co-pays, co-insurance for certain treatments or services) • Medical necessity definitions (recovering lost function vs. preventing loss) • Drug formularies (highest cost sharing tiers, access to “specialty” drugs through mail order only) • Visit limits (limiting number of rehabilitative visits without regard to medical practice • Benefit substitution • Utilization management (step therapy regardless of medical evidence)

18. Protections for People with Disabilities & Chronic Illness • § 1557 prohibits discrimination on the basis of disability including • Prohibition on discriminatory plan benefit design and marketing Current regulations: [A covered entity shall not] have or implement marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability in a health-related insurance plan or policy, or other health-related coverage. 45 C.F.R. § 92.207

19. Attacks on Individuals with Limited English Proficiency (LEP)

20. Demographics • Over 66 million people speak a language other than English at home, over 21% of the population • Over 25 million (8.5% of the population) speak English less than “very well,” and may be considered LEP • 8.5 million children under age 19 live in a household with at least one LEP parent • About 25% of “marketplace” enrollees are LEP SOURCES: American Community Survey, 2017; Table S1603, Characteristics of People by Language Spoken at Home, American Community Survey 1-Year Estimates, available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_1YR_S1603&prodType=table; Table S1601, Language Spoken at Home, American Community Survey, 1-Year Estimates, https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_17_1YR_S1601&prodType=table.

21. Taglines • 2016 – taglines on all “significant” documents and notices in top 15 languages in a state • 2019 – no taglines required on any documents • NPRM says this saves $3.1B • Complaints by insurers and pharmacy benefit managers that “significant” documents was too broad and they were including taglines with every document (EOB, notice, etc.) • Tagline requirements may still exist in other federal regulations – e.g. Medicare Part D (Rx program)

22. Who’s Covered? • Changes focus from individual to entity • 2016 – a covered entity shall take reasonable steps to provide meaningful access to each LEP individual eligible to be served or likely to be encountered • 2019 (proposed) – any entity operating or administering a health program or activity shall take reasonable steps to ensure meaningful access to such programs/activities by LEP individuals • When language services must be provided, they must be: • Free of charge • Be accurate and timely • Protect the privacy and independence of the individual with LEP

23. Outlook for 2019 Legal Challenges?

24. Wayne Turner, turner@healthlaw.org www.healthlaw.org @nhelp_org @nhelp_org