The New Affordable Care Act Anti-Discrimination Regulations and HIV: Strengthening Protections for Our Community
June 17, 2016
Recently, the Department of Health and Human Services (HHS) issued final regulations implementing Section 1557, titled "Nondiscrimination in Health Programs and Activities" (the finalized Anti-Discrimination Regulations). Section 1557 of the ACA prohibits discrimination in health care access and coverage. The new regulations provide more detail as to the scope and application of Section 1557 as well as the protections individuals in a protected class can expect against discriminatory practices. The purpose of Section 1557 and its accompanying regulations is to coordinate and incorporate existing federal laws, regulations, and policies for non-discrimination in the health care setting. The new Anti-Discrimination Regulations are an important tool for the HIV community to use to combat discriminatory insurance practices.
Overview of the New Regulations
The recently finalized Anti-Discrimination Regulations apply to all health programs and activities that receive Federal financial assistance administered by HHS including Marketplaces plans. The regulations generally do not apply to private, employer-based insurance plans. Religious organizations whose beliefs conflict with nondiscrimination obligations will not be granted a religious exemption.
HHS chose to adopt different standards based on whether the discrimination was motivated by race, color, national origin, sex, age, or disability. For example, disability discrimination claims will be addressed through the existing procedures for processing complaints under Section 504 of the Rehabilitation Act of 1973 and race discrimination claims will be addressed through the existing procedures under Title VI of the Civil Rights Act. This means that individuals will have to prove different fact patterns, depending on the basis of discrimination, in order to establish that a violation of Section 1557 has occurred.
The approach adopted under the finalized Anti-Discrimination Regulations helps the HIV community in that HIV is explicitly included as a disability under the law, and therefore the finalized regulations can readily be utilized by people living with HIV to challenge discriminatory insurance practices. Unfortunately, individuals with other chronic conditions are protected under the Anti-Discrimination Regulations only to the extent that the chronic condition impacts at least one of the "major life activities." This is a serious limitation in the Regulations, especially when it comes to conditions with high co-morbidity rates with HIV, such as HCV.
Additionally, the Anti-Discrimination Regulations are also disappointingly silent on discriminatory plan design and coverage concerns. HHS "recognizes that discrimination based on health status, claims experience, medical history, or genetic information can, depending on the facts, have a disparate impact that results in discrimination on a basis prohibited by Section 1557." HHS also specifically acknowledges, for example, that discrimination against people living with disabilities such as HIV can take the form of insurance plans structured to move the cost of needed medication from the insurer to the enrollee through high cost-sharing. However, the lack of supporting detail may allow insurers to continue discriminatory practices that adversely affect beneficiaries living with HIV.
Despite the lack of explicit protections for the chronic-disease community, the finalized Anti-Discrimination Regulations provide advocates with a tremendous tool for strengthening the legal protections for our community. While the finalized regulations explicitly empower the Office of Civil Rights to enforce the requirements of Section 1557, they also allow for a private right of action and damages for violations of Section 1557. These provisions would allow individuals to sue insurers, federal and state marketplace administrators, and other actors who act in a discriminatory manner while providing health care coverage and access. The private right of action is a powerful tool for advocates, who no longer have to convince regulators to take an interest in discrimination experienced by people living with HIV.
Advocates, providers, and individuals living with HIV should be proactive about using the tools to combat discrimination found in the Anti-Discrimination Regulations. As with any regulations, there is room for advocacy to improve the Anti-Discrimination Regulations and the accepted articulation of Section 1557 to achieve its purpose -- protecting individuals from discriminatory practices in the health care markets. Careful advocacy to push regulators to be aggressive about enforcing the anti-discrimination promises of Section 1557 can expand the protections offered to individuals. Additionally, thoughtful litigation may allow courts to expand the protections of Section 1557 beyond what is currently articulated in the Anti-Discrimination Regulations.
Carmel Shachar is a staff attorney at Treatment Access Expansion Project.
This article was provided by AIDS United. Visit AIDS United's website to find out more about their activities and publications.
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