Form Hhs-699 - Discrimination Complaint - Department Of Health And Human Services - Office For Civil Rights (Ocr) Page 7
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13program or activity that is administered by an Executive Agency or any entity
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established under this title (or amendments).
Section 1557 expressly identifies "credits, subsidies, [and] contracts of insurance" as federal
financial assistance to make clear that each trigger its application. Unlike Section 1557, Title VI,
Title IX, and the Rehabilitation Act either explicitly exclude or have been interpreted in some
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circumstances to exclude contracts of insurance as a form of federal financial assistance.
A
contract of insurance that is federal financial assistance is any contract of insurance that is funded,
entered into, administered, or guaranteed by the federal government. Thus, an insurance company
in a Marketplace that receives federally-subsidized payments such as through premium tax credits
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is covered by Section 1557.
The regulations implementing Section 1557 explicitly prohibit health insurance issuers from
having or implementing “benefit designs that discriminate of the basis of . . . disability in a
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health-related insurance plan or policy, or other health-related coverage.”
Other regulations
implementing the ACA, as noted above, prohibit QHP issuers from employing benefit designs
“that will have the effect of discouraging the enrollment of individuals with significant health
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needs.”
In providing guidance to QHPs issuers on meeting the ACA essential health benefits
criteria, the Centers of Medicare and Medicaid Services (CMS) identified prescription drug plan
designs that may be discriminatory. CMS is particularly concerned about “adverse tiering, which
occurs when a formulary benefit design assigns most of or all drugs in the same therapeutic class
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needed to treat a specific chronic, high-cost medical condition to a high cost-sharing tier.”
CMS
has also identified “refusal[al] to cover a single-tablet drug regimen . . . that is customarily
prescribed and is effective” and “placing most or all drugs that treat a specific condition on the
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highest cost tiers”) as potentially discriminatory practices.
Section 1557 specifically references the enforcement mechanisms "provided for" and "available
under" Title VI, Title IX, Section 504, and the Age Discrimination Act ("the Age Act"). Disparate
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impact claims are allowed under the civil rights statutes referenced by Section 1557.
As Section
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42 U.S.C. § 18116.
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Because "contracts of insurance" are not excluded in the statutory text of Section 504 [of the Rehabilitation Act]
but in its regulations, there have been conflicting decisions about whether the regulations properly exclude it.
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45 C.F.R. § 92.4 (defining federal financial assistance as including assistance that HHS “plays a role in providing
or administering, including all tax credits under Title I of the ACA . . . .); 81 FR 31445 (May 18, 2016) (listing
examples of covered entities, including “Qualifying health plan issuers receiving assistance through advance
premium tax credits and cost-sharing reductions”).
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45 C.F.R. § 92.207(b)(2).
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45 C.F.R. § 156.225(b).
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Department of Health & Human Services, 2017 Letter to Issuers in the Federally-facilitated Marketplaces, Pg. 45
(February 29, 2016) available at
https://
Guidance/Downloads/Final-2017-Letter-to-Issuers-2-29-16.pdf.
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U.S. Dep't of Health & Human Servs., Centers for Medicare & Medicare Servs., Patient Protection and Affordable
Care Act: HHS Notice of Benefit and Payment Parameters Rule, 80 Fed. Reg. 10750, 10822 (Feb. 27, 2015).
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Dep't. of Justice, Title VI Legal Manual (2001),
(stating that Title VI regulations "may validly prohibit practices having a disparate impact on protected groups, even
if the actions or practices are not intentionally discriminatory")(citing Guardians Ass'n v. Civil Serv. Comm'n, 463
U.S. 582, 582 (1983) and Alexander v. Choate, 469 U.S. 287, 293 (1985)); Dep't of Justice, Title IX Legal Manual
(2001 ), (citing cases and stating "[i]n furtherance of
[Congress'] broad delegation of authority [to implement Title IX's prohibition of sex discrimination], federal agencies
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