A patient legal battle with Blue Cross and Blue Shield of Illinois could significantly increase the potential liability of third-party administrators under the anti-discrimination provisions of the Care Act. Good price.
A federal judge this month certified a class-action lawsuit against a nonprofit insurance company that alleges it refused to pay for the gender-appropriate care of a transgender teenager. through the self-funded employee benefits program it administers for Catholic Health Initiatives violation of the ACA. Patricia and Nolle Pritchard of Washington state sued two years ago after Blue Cross and Blue Shield of Illinois refused to cover sex-determined care for their son, identified as CP, in compliance with the policy. of the Catholic Health Initiative company based in Englewood, Colorado.
If the plaintiffs prevail, the consequences could extend beyond transgender people’s right to access medical care and dramatically change the relationship between health insurers and employers. have self-funded health benefit programs that they administer.
Abigail Coursolle, senior attorney with the National Health Law Program, said the lawsuit could set a legal precedent that would hold third-party administrators who receive federal funds accountable for insurance policies. of their employer clients. “This is a growing area of law, and it really shows how complex our healthcare system is and how difficult it is to untangle who really makes the decisions about what.” covered, how it’s covered, and who might be responsible for those decisions,” she said.
Companies like Blue Cross and Blue Shield of Illinois may find themselves in a position to refuse to comply with customer policies, refusing to do business with owners who are religiously opposed to certain health care services. , pay for those treatments yourself, or waive Medicare and Medicaid Reimbursement to avoid anti-discrimination rules.
Blue Cross and Blue Shield of Illinois declined to comment on the ongoing litigation. Chicago-based CommonSpirit Health Catholic Health Initiative, which is not a party to the lawsuit, did not respond to a request for an interview.
Under Section 1557, entities that receive federal funds—such as Medicare and Medicaid payments—are not allowed to discriminate on the basis of sex, which the Department of Health and Human Services determines includes medical discrimination against transgender people. Religious employers may be exempt, but Blue Cross and Blue Shield of Illinois and its parent company, Health Care Service Corp., are not faith-based organizations.
exemption from employment
The Religious Freedom Restoration Act of 1993 was not created to allow private businesses to withhold payment for workers’ health care services based on their owners’ religious views. . That changed in 2014, when the Supreme Court ruled that the trust of privately held Hobby Lobby owners would exempt the retail craft chain from paying for the avoidance measures. for its workers. The decision paved the way for other employers to claim a religious exemption from federal law. Provider groups including the American Medical Association have called for an end to the payer exclusion for gender-affirming care.
Mark Silberman, vice president of healthcare practice groups at the law firm Benesch Friedlander Coplan & Aronoff, said more than half of US residents are covered under self-insured plans, and those who buy these policies have little opportunity to appeal employer coverage exclusions.
“It is a challenge. Most employers with self-insurance plans say, ‘This is the benefit we offer and in case you don’t want to join this benefit, you don’t have to,'” Silberman said. “The problem becomes: Most people don’t qualify to be cavalier and casually choose their employers based on the coverage they offer.”
In court filings, Blue Cross argued that religious exemptions for employers like the Catholic Health Initiative allow third-party administrators to enforce guest requests. their self-insured products, even those that the federal government classifies as discriminatory.
Judge Robert Bryan of the United States District Court for the Western District of Washington wrote in May 2021 that, because the Blue Cross itself is not a religious organization, it may be subject to the rules federal anti-discrimination. Bryan also noted that the Supreme Court had previously ruled that the sexist protections in the Civil Rights Act of 1964 applied to LGBTQ workers and that it would be “demographically inappropriate.” logical” if federal law does not classify discrimination against transgender people as gender-based bias.
Furthermore, writes Bryan, Blue Cross and Blue Shield of Illinois have worked with a number of self-funded employers that have transgender coverage exclusions to give workers the opportunity to sign up for alternative plans. coverage for sex-affirming care. The federal government is in the process of determining the legal obligations of third-party administrators under Section 1557.
“Section 1557 builds on these other civil rights statutes, and the courts have consistently interpreted the civil rights statutes to provide protection, in their own right,” said Christine Monahan, a professor at Georgetown University. the cases are quite similar, in the cases for gay or transgender people.” Center for Health Insurance Reform. “Even if HHS could go over that issue right now, the judge would still say, ‘I’m going to look at what the court is saying and make a judgment based on that.’”
HHS a href=”https://www.modernhealthcare.com/law-regulation/hhs-restore-strongen-aca-nondiscrimination-rules”>published a proposal in June to review liability on “ on a case-by-case basis,” depending on the level of involvement of administrators in developing insurance exclusions for employer customers. The department’s current policy stipulates that transgender people are protected by the ACA’s anti-discrimination rules, similar to a position taken by the administration of President Barack Obama but contrary to established regulations. modified during the administration of President Donald Trump.
Bryan’s decision to allow the lawsuit to continue comes as LGBTQ individuals increasingly go to court to fight denials of coverage. “It’s an area where we’re seeing a lot of litigation and I expect to see more, especially when it comes to decisions about what health care providers should be,” Coursolle said. getting more and more political.
The Pritchard family
CP, now 16, was diagnosed with gender dysphoria before he and his parents sought sex-affirming care. Pritchards sued Blue Cross and Blue Shield of Illinois for going against the recommendations of CP’s doctors and refusing hormone therapy and breast reconstruction surgery for him, according to the original complaint. The family then paid $10,000 out-of-pocket for the treatments.
The Pritchard family currently represents a group of transgender patients working at more than 370 employers who refuse to pay for gender-affirming care and contract with Blue Cross and Blue Shield of Illinois for benefits. employee health.
While policy language varies among employers, the insurer consistently exercises its exclusions by denying all claims including “gender dysphoria” and “gender dysphoria.” transgender,” wrote Bryan in his opinion this month. Omar Gonzalez-Pagan, consultant and healthcare strategist at Lambda Legal Defense and Education Foundation, said that if Pritchards wins the case, the insurer won’t be able to deny sex determination requests to people. with any patient enrolled in a self-funded health plan. which is representative of Pritchards.
“Here is the question, ‘Can a customer force Blue Cross and Blue Shield of Illinois to discriminate and do something against the law? I think the answer is no,” said Gonzalez-Pagan. “The law does not allow you to evade liability just because a client tells you to.”
In June, federal courts in Georgia and North Carolina ruled in separate class-action lawsuits that public employers cannot exclude or deny coverage for sex-affirming care. In August, the 7th Circuit Court of Appeals ruled that the parents of a child with autism can sue their employer—the life support company Heart of CarDon—for refusing treatment, which they allege violated Section 1557 of the ACA.
These legal advances stand in contrast to the growing number of state laws enacted and proposed that limit transgender people’s access to medical care. More than 145 transgender-related bills have been introduced in 34 states this year, the Human Rights Campaign, an advocacy organization for LBGTQ, wrote this month in a report listing violence against women. transgender.
The Human Rights Campaign does not specify how many laws target transgender patients’ access to healthcare. But one example comes from Florida, where the Health Care Administration issued a rule in August denying Medicaid coverage for sex-affirming care. A federal judge upheld the rule in October after a group of patients were sued under Section 1557.
“There will be more confusion than is clear in the near future,” Silberman said.
