|The Patient Protection and Affordable Care Act (ACA)
- Expands coverage to many uninsured persons through Medicaid and health insurance marketplaces in all states. Medicaid, in states that expand, will base eligibility solely on income and residency status (no categorical requirement) and tax credits are available to help subsidize the cost of coverage in marketplaces for low income individuals.
- While currently, not being enforced by the HHS Office of Civil Rights (OCR), as a result of a legal ruling, Section 1557 prohibits discrimination based on sex, defined to include gender identity and sex stereotypes, in any health program receiving federal funds (such as Medicaid, Medicare, and providers who receive federal funds). The rule creates specific protections for transgender individuals, including the right to access services/facilities consistent with their gender identity. In addition, transgender individuals cannot be denied services based solely on their gender identity or because their gender does not match their recorded sex. The final rule implementing Section 1557 does not explicitly resolve whether discrimination on the basis of sexual orientation alone is prohibited but does state in the preamble that “sex discrimination related to an individual’s sexual orientation where the evidence establishes that the discrimination is based on gender stereotypes” is prohibited. Despite OCR’s capacity to enforce 1557 being stayed, it remains illegal to violate 1557 protections and an entity doing so could be held liable in court. (A draft proposed rule revising 1557 implementing guidance is purportedly working its way through the rulemaking process; this section will be updated when additional information is available.)
- Federal regulations governing health insurance marketplaces and regulations governing plans that offer “essential health benefits” prohibit discrimination based on sexual orientation and gender identity.
- Federal regulations governing health insurance issuers’ marketing practices requires all health issuers offering non-grandfathered plans in the individual and group markets that offer coverage to opposite-sex spouses to also offer coverage to same-sex spouses, based on state of celebration.,
- Promotes data collection and analysis on sexual orientation and gender identity through federally-sponsored surveys and programs.
- Individuals will no longer be denied coverage due to a pre-existing condition, such as HIV, mental illness, or a transgender medical history in most plans.
- Non-grandfathered individual market private and Medicaid expansions plans are required to cover USPSTF recommended preventive services without cost sharing. Includes screenings for HIV, STIs, depression, and substance misuse.
|Supreme Court Rulings on Marriage Equality: United States v. Windsor (2013)
Obergefell v. Hodges (2015)
- Legalization of same-sex marriage nationwide by overturning Section 3 of the Defense of Marriage Act, which had limited marriage to persons of the opposite sex (Windsor), and ruling that the fourteenth amendment requires states to license same-sex marriages and to recognize such marriages performed out-of-state (Obergefell). The rulings affects access to health coverage, health benefits, and related policies for married same-sex couples nationwide.
- Department of Justice Federal Marriage Benefits for Same-Sex Couples
- Announcement by Attorney General, following Obergefell ruling, that federal agencies will work to extend marriage benefits to married same-sex couples in all states (Windsor ruling had extended many but not all federal benefits to married same-sex couples based on state of celebration but some benefits not available in states that did not recognize same-sex marriage).
- Internal Revenue Service (IRS) Ruling 2013-17
- After Windsor, ruled that same-sex couples legally married will be treated as married for federal tax purposes, regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or not (“state of celebration” takes precedent). Allows couples to file federal taxes as “married” and thus treats same-sex spousal health coverage as tax exempt for purposes of determining federal income tax.
- If same-sex spouse received employer-based dependent insurance, the employee may apply for refund of excess federal income taxes paid on the value of the coverage for past 2-3 years.
- U.S. Office of Personnel Management, Guidance on the Extension of Benefits to Married Gay and Lesbian Federal Employees, Annuitants, and their Families
- After Windsor, extended federal health (FEHB), vision, dental, long-term care, and flexible spending accounts benefits to legal same-sex spouses of federal employees, based on state of celebration.
- Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Federal Contractors and Subcontractors
- Prohibit federal contractors and subcontractors from discriminating on the basis of sexual orientation or gender identity in employment, including in the provision of spousal health benefits.
- Department of Defense Memorandum Subject: Extending Benefits to the Same-Sex Spouses of Military Members
- Legally married spouses eligible for dependent health coverage of service members and DOD civilian employees.
- Department of Veterans Affairs – Recognition of Same-Sex Marriages
- Windsor extended VA benefits (including CHAMPVA health coverage, survivor compensation, and burial benefits) to same-sex spouses of Veterans based on state of domicile. Per Obergefell, benefits to be extended to all same sex spouses of Veterans nationwide.
- Center for Consumer Information and Insurance Oversight (CCIIO) Guidance on IRS Ruling 2013-17 and Eligibility for Advance Payments of the Premium Tax Credit and Cost-Sharing Reductions
- All Health Insurance Marketplaces are to recognize legal same-sex marriages when determining eligibility for Premium Assistance and Tax Credits.
- Centers for Medicare and Medicaid Services (CMS) Guidance on Eligibility for Medicaid and CHIP
- After Windsor, states encouraged to recognize same-sex marriages by jointly counting spousal income when determining Medicaid eligibility but not required to do so. Since Obergefell, expected to apply nationwide to all Medicaid programs.
- Social Security Administration Determination of Marital Status for spousal Medicare benefits
- Same-sex spouses eligible for free Medicare Part A if spouse has sufficient work history to qualify for Medicare benefits. (was based on state of domicile after Windsor and extended nationwide per Obergefell).
- Special enrollment period for Medicare available to those who gain and then lose insurance coverage related to spousal employment.
- Centers for Medicare and Medicaid Services (CMS) Impact of United States v. Windsor on Skilled Nursing Facility Benefits for Medicare Advantage Enrollees
- After Windsor, clarifies that same-sex married beneficiaries in Medicare Advantage plans who each need care in a skilled nursing facility can receive care at same facility, as applicable to married beneficiaries more generally.
- Department of Labor, Wage and Hour Division- The Family and Medical Leave Act
- As a result of the Windsor ruling, the DOL finalized a rule in 2015 that expanded the definition of “spouse” to include all legally married same-sex couples for purposes of providing workplace protections to employees if they take time off to care for a family member in the event of illness or birth of a child.
- Presidential Memorandum- Hospital Visitation
- Executive order and subsequent regulations in 2010 stating that hospitals receiving funds from Medicaid and Medicare are to respect the rights of patients to designate visitors, including same-sex partners (whether married or not) and others designated by legally valid advance directives.
- Regulations issued in November 2010 supports enforcement of the right of patients to designate the person of their choice, including a same-sex partner, to make medical decisions on their behalf should they become incapacitated.
- Centers for Medicare and Medicaid Services Memorandum 13-42-NH: Reminder- Access and Visitation Rights in Long Term Facilities
- LTC facilities must ensure that all individuals, including same-sex partners (whether married or not), seeking to visit a resident be given full and equal visitation privileges, consistent with resident preferences within reasonable restrictions that safeguard residents.
- Centers for Medicare and Medicaid Services- Medicaid Spousal Impoverishment Protections
- In 2011, states were given the option to extend protections to include married same-sex spouses and domestic partners. This allows a spouse living in the community to maintain a certain level of assets when institutional expenses (usually a nursing home) threaten to deplete all resources and impoverish the community-based spouse. After Windsor, marriage equality states were required to extend such protections to married same-sex partners. Since Obergefell, protections are expected to apply nationwide to all Medicaid beneficiaries.
- Department of Health and Human Services and Office of Personnel Management – Coverage for Gender Transition Services
- Prohibit bans on various gender transition services in Medicare, as of June 2014, and FEHBP plans, as of 2016
- National Institutes of Health- LGBT Research Coordinating Committee
- This committee was formed to consider recommendations of the Institute of Medicine’s study The Health of Lesbian, Gay, Bisexual, and Transgender People: Building a Foundation for Better Understanding and to suggest strategies for how the NIH can support research.
- Executive order and proposed rule supporting expansion of alternative health plans
- The Trump administration has sought to widen the availability of plans that may be exempt from key protections, including non-discrimination protections related to SOGI. Short-term limited duration (STLD) and association health plans in particular have been targeted as vehicles for this expansion.
- Creation of Office of “Conscience and Religious Freedom Division” at HHS’s OCR and issuance of proposed rule
- Office and proposed rule aim to promote protection of moral and religious convictions of health care providers. Could impact access to care for LGB Individuals.