Health Plans Need to Start Talking About Disparities in Care

On the heels of a recent groundbreaking RAND report on racial disparities in Medicare Advantage (MA), the US Department of Health & Human Services’ Office of Civil Rights (OCR) issued a regulation that requires serious attention in health plans participating in MA, Part D, Medicaid, and ObamaCare. It’s a game-changer in advancing health equity and reducing disparities.

The new regs, implementing Section 1557 (the nondiscrimination provision) of the Affordable Care Act, prohibit discrimination, marketing practices, or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability. This will escalate disparities from simply being a “quality improvement need” to being a huge compliance issue. It goes without saying that an investigation of your plan by the civil rights cops splashed across local news would be devastating. As the Centers for Medicare & Medicaid Services (CMS) has begun more aggressively using their data to identify these disparities, health plans certainly should begin doing the same.

The final rule prohibits sex discrimination in healthcare, including by:

• Individuals cannot be denied healthcare or health coverage based on their sex, including their gender identity and sex stereotyping. These last two items are of particular importance given transgender policy enforcement is relatively new. OCR has prosecuted cases recently where transgender patients were discriminated against in hospital admissions and room assignments, denying mammograms to transgender females, denial of gender reassignment surgery as “cosmetic,” and harassment by medical transport drivers.
• Women must be treated equally with men in the healthcare they receive and the insurance they obtain. OCR has prosecuted several cases recently where hospitals assigned male guarantors when a wife obtained services but not the other way around.
• Categorical coverage exclusions or limitations for all healthcare services related to gender transition are discriminatory.
• Individuals must be treated consistent with their gender identity, including in access to facilities.
• Sex-specific health programs or activities are permissible only if the entity can demonstrate an exceedingly persuasive justification.

The regs also include important protections for individuals with disabilities and those with limited English proficiency by:

• Requiring covered entities to take appropriate steps to ensure communications with individuals with disabilities are as effective as communication with others.
• Covered entities must post a notice of individuals’ rights, providing information about communication assistance, among other information.
• Covered entities are required to make all programs and activities provided through electronic and information technology accessible to individuals with disabilities, unless doing so would impose undue financial or administrative burdens.
• Covered entities cannot use marketing practices or benefit designs that discriminate on the basis of disability.
• Covered entities must make reasonable changes to policies, practices, and procedures, where necessary, to provide equal access for individuals with disabilities.
• Requiring covered entities to make electronic information and newly constructed or altered facilities accessible to individuals with disabilities and to provide appropriate auxiliary aids and services for individuals with disabilities.
• Requiring covered entities to take reasonable steps to provide meaningful access to individuals with limited English proficiency. Covered entities are also encouraged to develop language access plans.

Resources

CMS recently announced the release of the 2017 Medicare Marketing Guidelines for Medicare Advantage Organizations and Part D Sponsors, which include added language, clarifications, and new requirements. Join Regan Pennypacker, GHG’s Senior Vice President of Compliance Solutions, and Carrie Barker-Settles, Director of Sales and Marketing Services, on Tuesday, June 28, from 1-2 pm ET, to discuss what provisions in the final guidelines will have the greatest impact on your organization and how plan sponsors can prepare for the upcoming changes. Register now >>

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