For those who have experienced discrimination in its many forms, the regulation includes a number of provisions to protect consumers. Each health entity must provide appropriate aids and services to those with limited English proficiency and disabilities. The rule extends protections for transgender persons unlike ever before, including it as a form of sex discrimination. Furthermore, all services must be made available for gender transition (like a hysterectomy) that are available to a person seeking non-transition related care. All transgender persons must be treated consistent with their own gender identity.
The proposed rule also establishes a private right of action, giving individuals the ability to file a lawsuit under Section 1557 (courts had already begun to authorize private Section 1557 lawsuits, but this makes it official). This is an important step forward, because unlike the Section 1302 regulation, insurers will be highly motivated to comply with the 1557 regulation or face costly litigation. Insurers will think twice about changing their benefit design to discourage enrollment by individuals of a certain race, color, national origin, sex, age, and disability. Instead of taking years to pass a new regulation, a private cause of action allows the justice system to “keep pace” with quickly evolving insurer practices.
However, these positive developments are tempered by some noticeable omissions. Namely, the rule is conspicuously silent about discrimination on the basis of health status. As Timothy Jost stated in his recent post, “Surprisingly, the proposed rule does not directly address one of the most salient current discrimination questions: whether insurers can impose high cost sharing or otherwise limit access to expensive drugs needed by certain disabled populations.”