CMS 2023 Payment Rule Focuses on Healthcare Discrimination

we discussed Notice of Benefits and Payment Parameters for Proposed Rule 2023, issued by the Centers for Medicare and Medicaid Services (CMS). On April 28, 2022, CMS released NBPP 2023 final rule. CMS publishes a Fact Sheet April 28, 2022 and other resources.The rule will go into effect on January 1, 2023, but an optional early bird application deadline It is May 18, 2022, and the deadline for issuers to submit changes to their QHP applications is August 17, 2022.

The 2023 NBPP final rule introduced regulatory changes to the individual and small group health insurance market and established requirements for the 2023 benefit year. It also includes regulatory standards to enhance coverage of Qualified Health Plans (QHPs) in the federal market and ensure consumers can more easily find quality, affordable coverage. 2023 NBPP final rule includes several health equity provisions, aligned with Biden administration’s Inauguration Day executive order Committed to promoting racial equity and supporting underserved communities.

Basic Health Benefit Policy for Plan Design

The 2023 NBPP final rule is designed to protect consumers from discriminatory practices within Essential Health Benefit (EHB) coverage. Specifically, benefit designs that discriminately limit EHB coverage under this rule must be clinically based to be considered non-discriminatory.The final rule includes the following examples itself Discriminatory benefit designs, such as age restrictions on hearing aid insurance, autism spectrum disorder insurance, or fertility treatment use. To overcome this presumption of non-discrimination, issuers must demonstrate that clinical evidence justifies the difference in treatment, or that the difference is necessary to comply with federal law—such as adhering to the recommendations of the United States Preventive Services Task Force (USPSTF), which may include Age restrictions and other restrictions.

In designing non-discriminatory program designs and ensuring that clinical indications are based on EHB restrictions prohibited by Section 156.125, CMS encourages issuers to seek current and relevant clinical evidence rather than using standard program designs that tend to overlap or may be inconsistent with scope. However, CMS also acknowledges that limitations in medical research may limit the availability of such clinical evidence. Therefore, CMS does not include any specific standard of care because it does not designate a source of acceptable clinical information that issuers can use to demonstrate that their benefit design is not discriminatory. This runs counter to the proposed rule, which would propose specific criteria for determining appropriate, evidence-based guidelines and sources. Here, the final rule does not provide a definition of “clinically based” or “clinically indicated.”

The rule also updates the quality improvement strategy standard, requiring issuers to address health and healthcare disparities.

Nondiscrimination based on sexual orientation and gender identity

us Mentioned before 2023 NBPP proposed rules to be revised 45 CFR § 147.104(e) Discrimination based on sexual orientation and gender identity is explicitly prohibited, as it was before 2020.Proposed rule cites Biden administration executive order Regarding the Prevention and Combating of Discrimination Based on Gender Identity or Sexual Orientation and the HHS Announcement Interpreting Section 1557 and Title IX to Include Discrimination Based on Sexual Orientation and Gender Identity, according to Bostock v. Clayton County.

The proposed rule would prohibit health insurance issuers, their officers, employees, agents and representatives from adopting practices or designs that result in deregistration or discrimination against individuals on the basis of race, color, national origin, current or projected disability, age, sex, sex orientation, gender identity, life expectancy, medical dependence, quality of life, or other health conditions. The proposed rule finds a statutory basis for this to be independent of ACA Section 1557, citing ACA Section 1311(c)(1)(A) on QHP issuer certification requirements and ACA Section 1321(a) on establishing and operating exchanges and issue authorized QHPs through such exchanges.This provision is strongly support by different stakeholders.

However, the final rule declines to finalize any changes because HHS’s Office of Civil Rights (OCR) is working on a rule that would also address the prohibition of discrimination on the basis of sex in health insurance under ACA Section 1557. HHS also removed its proposed presumptive discriminatory example related to gender-affirming care benefit designs.Department of Health and Human Services express “It is most prudent to address nondiscrimination proposals related to sexual orientation and gender identity later in the 2023 Payment Notice Proposed Rule to ensure they are consistent with the policies and requirements that will be included in Section 1557 rulemaking.” Accordingly, until the new rule is finalized, HHS will continue to interpret and enforce Section 1557 and its protections against sex discrimination to “prohibit discrimination based on sexual orientation and gender identity in all aspects of health insurance coverage governed by Section 1557” “.

The non-discrimination rules proposed by the OCR under section 1557 are Awaiting regulatory review in the Office of Management and Budget. HHS previously announced that the rule will be published in April 2022, so it is likely that the rule will be published soon. Until then, insurers covered by Section 1557 should ensure compliance with nondiscrimination requirements, including HHS’ interpretation of sex discrimination under Section 1557, including sexual orientation and gender identity. In particular, insurers should review plan terms and remove plan exclusions that may prevent access to health care treatments and services because of sexual orientation or gender identity.

Sheela Ranganathan also contributed to this article.

Copyright © 2022, Sheppard Mullin Richter & Hampton LLP.National Law Review, Vol. XII, No. 137

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