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Federal and State LGBTQ Protections Not Sufficient to Prevent Improper Denial of Termination of Benefits

On Behalf of | Jun 24, 2022 | ERISA

Discrimination in health care impacts health outcomes. Research shows that one quarter of LGBTQ people who faced discrimination postponed or avoided receiving needed medical care for fear of further discrimination.

 

In 2019, the Movement Advancement Project issued a four-page report noting in part that members of the LGBT community are more likely than the general population to have a disability and are more likely to experience mental health conditions that can impact daily life. Movement Advancement Project. July 2019. LGBT People With Disabilities. https://www.lgbtmap.org/lgbt-people-disabilities. (June 13, 2022).  The report furthermore noted that a growing body of research links experiences of discrimination, including but not limited to experiences of discrimination based on sexual orientation, gender identity, disability status, and barriers to competent health care, to these health disparities.

 

Historically, LGBT persons have also been disproportionately targeted for denial of benefits by insurance providers.  For example, we have successfully represented HIV/AIDS positive claimants whose long-term disability benefits were suddenly terminated after years or decades of receiving benefits, despite a lack of improvement in their whole person condition.

 

In response to such discrimination, the Equal Insurance HIV Act was signed into law in California on September 26, 2020.  The law is intended to end discrimination against HIV-positive Californians for life and disability income insurance. https://sd33.senate.ca.gov/news/2020-09-26-governor-newsom-signs-equal-insurance-hiv-act-enacting-anti-discrimination. Almost a year later, on May 10, 2021, the Department of Health and Human Services also announced that the Office for Civil Rights would interpret and enforce Section 1557 of the Patient Protection and Affordable Care Act and Title IX’s prohibitions on discrimination based on sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. https://www.hhs.gov/about/news/2021/05/10/hhs-announces-prohibition-sex-discrimination-includes-discrimination-basis-sexual-orientation-gender-identity.html. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities.  The update was made in light of the U.S. Supreme Court’s decision in Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731 (2020), and subsequent court decisions.

 

Nonetheless, insurers may find other bases – -not covered by statutory protections – -to improperly deny benefits to members of the LGBT community.  Additionally, many states governments are actively working against the federal protections offered by Section 1557. For example, since 2021, several state legislatures have introduced bills to prohibit, criminalize, discourage, or otherwise limit access to medically necessary gender-affirming care for transgender youth.  Approximately half of these bills bar certain insurance providers from offering coverage for gender-affirming care, by placing restrictions on the use of state funds or state facilities to provide this care, or by excluding gender-affirming care as a tax-deductible health care expense. https://williamsinstitute.law.ucla.edu/wp-content/uploads/Trans-Youth-Health-Bans-Mar-2022.pdf.   Although states cannot enact laws that regulate self-funded plans (self-funded employer-sponsored health plans offered by private sector employers) because such laws are preempted by the Employee Retirement and Income Security Act (ERISA), neither insured nor self-funded plans are required to provide coverage for medically necessary gender-affirming care.  Specifically, although Section 1557 offers important protections for people seeking gender-affirming care, it only applies to health care programs that receive federal funding and doesn’t require health insurance policies to cover any particular procedure or treatment. Thus, insurers can still deny some gender-affirming care on a case-by-case basis, and state laws and policies related to private insurance, Medicaid programs, and employee benefits vary widely.

 

If you feel your claim for health, disability, life, or accidental death and dismemberment benefits has been improperly denied or terminated benefits, contact our office for a free assessment of your rights.