HHS Notice of Benefit & Payment Parameters for 2023 Proposed Rule Addresses Non-Discrimination

On January 5, 2022, the Department of Health and Human Services (HHS) published the Notice of Benefit and Payment Parameters for 2023 Proposed Rule (NBPP). The Centers for Medicare & Medicaid Services (CMS) proposed standards for issuers and Marketplaces, as well as requirements for agents and brokers.

The proposed rules are intended to provide a more stable and predictable regulatory framework and facilitate a more efficient and competitive market.

The rules build on the Affordable Care Act (ACA) to expand access to quality, affordable health coverage and care by lowering premiums, strengthening markets, and enhancing the consumer experience.

There are two proposed changes that are consistent with the Biden administration’s Inauguration Day executive order to advance health equity:

• Nondiscrimination Based on Sexual Orientation and Gender Identity
• Nondiscrimination in Benefit Designs

CMS proposes to amend 45 C.F.R. § 147.104(e) by prohibiting issuers, agents, and brokers from discriminating against consumers based on sexual orientation and gender identity.

CMS previously prohibited discrimination based on “race, color, national origin, disability, age, sex, gender identity or sexual orientation,” but in 2020 the HHS final rule on Section 1557 removed gender identity and sexual orientation from the non-discrimination protections by revising CMS regulations. Prohibiting discrimination based on sexual orientation and gender identity would increase access to health care, decrease health disparities, and align with the executive order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.

Examples of presumptively discriminatory benefit designs provided by the HHS include:

• Limiting hearing aid coverage based on age;
• Age limits for infertility treatment coverage when treatment is clinically effective for the age group;
• Limiting foot care coverage based on diagnosis (such as diabetes); and
• Limiting coverage for gender-affirming care.

The proposed rule clarifies the nondiscrimination policy for benefit design under 45 C.F.R. § 156.125.

As currently drafted, if an issuer’s benefit design or implementation “discriminates based on an individual’s age, expected length of life, present or predicted disability, degree of medical dependency, quality of life or other health conditions” then the issuer does not provide an essential health benefit (EHB). Similarly, an EHB benchmark plan is prohibited from including discriminatory benefit designs.

HHS published a Fact Sheet and other resources on December 28, 2021.

Comments on the proposed rule were due by January 27, 2022, and the Biden administration is expected to issue a proposed rule on Section 1557 in April 2022.

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