Tell Health and Human Services to include LGBT families in health care reform
As the Affordable Care Act becomes law over the next few years,
we here at Family Equality will continue to submit comments to
ensure that health care reform includes all families, including
LGBT-headed families. Below are the comments we submitted today
on preventing discrimination. Click
here to read other comments and submit your own.
October 31, 2011
The Honorable Kathleen Sebelius
Secretary of Health and Human Services
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201
RE: [CMS-9989-P] RIN 0938-AQ67 - Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans
Dear Secretary Sebelius:
Family Equality Council is the national organization working to ensure full social and legal equality for the approximately 1 million lesbian, gay, bisexual, and transgender (LGBT) parents raising more than 2 million children across the U.S. by providing direct support, educating the American public, and securing inclusion in legislation, policies, and practices impacting families. On behalf of our families, we would like to thank the Secretary and the Department for their commitment to the health of all Americans. The Affordable Care Act provides a rich opportunity to ensure that underinsured individuals and families across the country have the opportunity to access necessary care. In particular, the formation of the Exchanges and the Qualified Health Plans (QHPs) will assist underserved populations to afford previously unattainable comprehensive coverage.
Below we offer specific recommendations on the regulations that specifically impact LGBT parents and their children. First, however, we would like to echo the concerns of our colleagues and recommend that the Exchanges and QHPs be implemented with culturally competent and linguistically appropriate care to ensure we are reaching traditionally underserved populations.
Nondiscrimination
We appreciate the explicit inclusion of sexual orientation and gender identity in the non-discrimination provision. We urge HHS, however, to issue guidance soon after the publication of the final rule explaining the scope of discrimination protections on the basis of sexual orientation and gender identity. A description of the types of discrimination against LGBT people that are prohibited by the non-discrimination rule should include discrimination on the basis of whether a family relationship is legally recognized by the state or by the federal government. This prohibition should also include charging different rates for certain families because of their construct and refusing coverage for benefits and services available to similarly-situated families. Insurers, employers, and providers often discriminate against same-sex couples and their children on the basis of sexual orientation or gender identity by claiming an inability to recognize the familial relationship because of federal or state laws banning same-sex marriage, second-parent adoption, or other forms of relationship recognition. State and federal laws barring relationship recognition for state and federal benefits do not prohibit QHPs from recognizing family relationships for the purposes of providing health insurance, and HHS should issue guidance to explain that this type of discrimination is prohibited in the Exchanges.
Definition of Family
The proposed regulations currently contain no definition of “family.” Because the term is used frequently throughout the proposed rules and may cause confusion for applicants and beneficiaries, as well as the employees implementing the regulations, we recommend that HHS add a definition of “family” to 45 C.F.R. § 155.20 – Definitions and 45 C.F.R. § 156.20 – Definitions.
We propose the following definition, which is based on regulations from the Office of Personnel Management[1] and regulations implementing the Family Medical Leave Act:[2]
Family means a husband or wife as defined or recognized under State law, including common law marriage in states where it is recognized; a domestic partner or individual in a civil union as defined or recognized under State law; a biological, adoptive, step or foster parent, legal guardian, or any other individual standing in loco parentis to a child; a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis; or any other person related by blood or affinity whose close association with the person is the equivalent of a family relationship.
Rating Variations
Under the proposed regulations, the issuer of a Qualified Health Plan must cover the following groups “using some combination of the following categories”: individuals; two-adult families; one-adult families with a child or children; and all other families. With a strong definition of family, such as the definition suggested above, LGBT families should be covered under all QHPs. Additionally, prohibiting discrimination on the bases of sexual orientation and gender identity, as well as familial and marital status should protect LGBT families from discrimination in accessing a QHP. Without the combination of specific non-discrimination language and the broad definition of family outlined above, however, we fear that a QHP issuer may be permitted to discriminate against or exclude many LGBT families. We therefore encourage HHS to take the above recommendations and issue further guidance and/or interpretation of 45 C.F.R. § 156.255 to ensure inclusion of LGBT families.
In conclusion, we would like to thank the Secretary and the Department of Health and Human Services for creating the opportunity to comment on the proposed regulations. We strongly believe that if implemented with care, the Exchanges and Qualified Health Plans have the potential to allow millions of underserved Americans, including countless LGBT families, to access affordable health care.
Please feel free to contact Emily Hecht-McGowan, Director of Public Policy for Family Equality Council, with any questions either by telephone (202.496.1285) or email at ehecht@familyequality.org.
Thank you,
Jennifer Chrisler
Executive Director
Family Equality Council
[1] See, e.g. 5 C.F.R. § 630.201 Definitions (Family member means an individual with any of the following relationships to the employee: (1) Spouse, and parents thereof; (2) Sons and daughters, and spouses thereof; (3) Parents, and spouses thereof; (4) Brothers and sisters, and spouses thereof; (5) Grandparents and grandchildren, and spouses thereof; (6) Domestic partner and parents thereof, including domestic partners of any individual in paragraphs (2) through (5) of this definition; and (7) Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship).
[2] Wage and Hour Division, Administrator’s Interpretation No. 2010-3, Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child, Issued by Deputy Administrator Nancy J. Leppink, June 22, 2010.
October 31, 2011
The Honorable Kathleen Sebelius
Secretary of Health and Human Services
U.S. Department of Health and Human Services
200 Independence Avenue, SW
Washington, DC 20201
RE: [CMS-9989-P] RIN 0938-AQ67 - Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans
Dear Secretary Sebelius:
Family Equality Council is the national organization working to ensure full social and legal equality for the approximately 1 million lesbian, gay, bisexual, and transgender (LGBT) parents raising more than 2 million children across the U.S. by providing direct support, educating the American public, and securing inclusion in legislation, policies, and practices impacting families. On behalf of our families, we would like to thank the Secretary and the Department for their commitment to the health of all Americans. The Affordable Care Act provides a rich opportunity to ensure that underinsured individuals and families across the country have the opportunity to access necessary care. In particular, the formation of the Exchanges and the Qualified Health Plans (QHPs) will assist underserved populations to afford previously unattainable comprehensive coverage.
Below we offer specific recommendations on the regulations that specifically impact LGBT parents and their children. First, however, we would like to echo the concerns of our colleagues and recommend that the Exchanges and QHPs be implemented with culturally competent and linguistically appropriate care to ensure we are reaching traditionally underserved populations.
Nondiscrimination
We appreciate the explicit inclusion of sexual orientation and gender identity in the non-discrimination provision. We urge HHS, however, to issue guidance soon after the publication of the final rule explaining the scope of discrimination protections on the basis of sexual orientation and gender identity. A description of the types of discrimination against LGBT people that are prohibited by the non-discrimination rule should include discrimination on the basis of whether a family relationship is legally recognized by the state or by the federal government. This prohibition should also include charging different rates for certain families because of their construct and refusing coverage for benefits and services available to similarly-situated families. Insurers, employers, and providers often discriminate against same-sex couples and their children on the basis of sexual orientation or gender identity by claiming an inability to recognize the familial relationship because of federal or state laws banning same-sex marriage, second-parent adoption, or other forms of relationship recognition. State and federal laws barring relationship recognition for state and federal benefits do not prohibit QHPs from recognizing family relationships for the purposes of providing health insurance, and HHS should issue guidance to explain that this type of discrimination is prohibited in the Exchanges.
Definition of Family
The proposed regulations currently contain no definition of “family.” Because the term is used frequently throughout the proposed rules and may cause confusion for applicants and beneficiaries, as well as the employees implementing the regulations, we recommend that HHS add a definition of “family” to 45 C.F.R. § 155.20 – Definitions and 45 C.F.R. § 156.20 – Definitions.
We propose the following definition, which is based on regulations from the Office of Personnel Management[1] and regulations implementing the Family Medical Leave Act:[2]
Family means a husband or wife as defined or recognized under State law, including common law marriage in states where it is recognized; a domestic partner or individual in a civil union as defined or recognized under State law; a biological, adoptive, step or foster parent, legal guardian, or any other individual standing in loco parentis to a child; a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis; or any other person related by blood or affinity whose close association with the person is the equivalent of a family relationship.
Rating Variations
Under the proposed regulations, the issuer of a Qualified Health Plan must cover the following groups “using some combination of the following categories”: individuals; two-adult families; one-adult families with a child or children; and all other families. With a strong definition of family, such as the definition suggested above, LGBT families should be covered under all QHPs. Additionally, prohibiting discrimination on the bases of sexual orientation and gender identity, as well as familial and marital status should protect LGBT families from discrimination in accessing a QHP. Without the combination of specific non-discrimination language and the broad definition of family outlined above, however, we fear that a QHP issuer may be permitted to discriminate against or exclude many LGBT families. We therefore encourage HHS to take the above recommendations and issue further guidance and/or interpretation of 45 C.F.R. § 156.255 to ensure inclusion of LGBT families.
In conclusion, we would like to thank the Secretary and the Department of Health and Human Services for creating the opportunity to comment on the proposed regulations. We strongly believe that if implemented with care, the Exchanges and Qualified Health Plans have the potential to allow millions of underserved Americans, including countless LGBT families, to access affordable health care.
Please feel free to contact Emily Hecht-McGowan, Director of Public Policy for Family Equality Council, with any questions either by telephone (202.496.1285) or email at ehecht@familyequality.org.
Thank you,
Jennifer Chrisler
Executive Director
Family Equality Council
[1] See, e.g. 5 C.F.R. § 630.201 Definitions (Family member means an individual with any of the following relationships to the employee: (1) Spouse, and parents thereof; (2) Sons and daughters, and spouses thereof; (3) Parents, and spouses thereof; (4) Brothers and sisters, and spouses thereof; (5) Grandparents and grandchildren, and spouses thereof; (6) Domestic partner and parents thereof, including domestic partners of any individual in paragraphs (2) through (5) of this definition; and (7) Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship).
[2] Wage and Hour Division, Administrator’s Interpretation No. 2010-3, Clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an employee standing “in loco parentis” to a child, Issued by Deputy Administrator Nancy J. Leppink, June 22, 2010.