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Will Sex Discrimination be Re-Defined?

By: Erin M. Hussey

Section 1557 of the Affordable Care Act (“ACA”) prohibits discrimination on the basis of race, color, national origin, sex, age, or disability with regards to certain covered entities’ health programs. A covered entity is one that receives federal funding as outlined in the ACA.

The US Department of Health and Human Services (“HHS”) has issued a proposed rule that would revise the regulations implementing and enforcing Section 1557. This proposed rule, among other things, would essentially allow HHS not to include “gender identity” and “termination of pregnancy” within the definition of “sex discrimination.”

By way of background, HHS’s 2016 regulation on Section 1557 redefined sex discrimination to include gender identity and termination of pregnancy. However, on December 31, 2016, a US District Court issued a nationwide injunction on certain parts of Section 1557, including gender identity and termination of pregnancy, and that injunction is still in effect. As such, this proposed rule would follow suit with that injunction. HHS details that this part of the proposed rule would “not create a new definition of discrimination ‘on the basis of sex’ . . . [but] would enforce Section 1557 by returning to the government's longstanding interpretation of ‘sex’ under the ordinary meaning of the word Congress used.”

In addition, plans that are not directly subject to Section 1557, must still ensure that the employer sponsoring that plan remains in compliance with Title VII of the Civil Rights Act. Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. The Equal Employment Opportunity Commission’s (“EEOC’s”) interpretation of its prohibition on sex discrimination includes discrimination based on gender identity and sexual orientation. However, there have been similar discussions of whether sex discrimination should be redefined under Title VII. HHS detailed this issue in their fact sheet on the proposed rule:

“On April 22, 2019, the U.S. Supreme Court granted petitions for writs of certiorari in three cases, which raise the question whether Title VII’s prohibition on discrimination on the basis of sex also bars discrimination on the basis of gender identity or sexual orientation.”

Therefore, while we wait to see if the proposed rules on Section 1557 are finalized, and for the outcome of the above-noted Supreme Court cases on Title VII, applicable health plans should remain cautious with regards to benefits and exclusions that may implicate sex discrimination issues. If you feel as if you are being discriminated against and would like to negotiate a fair rate, visit our claim negotiation page to learn more. 


2nd Quarter Newsletter 2015

 The past few months have brought so much intrigue to our industry.  Everywhere you looked, something or someone was affecting health care and the insurance industry as a whole.  We saw the Supreme Court make a few monumental decisions that will affect how plans are written in the future and the viability of the ACA.  We saw interesting court cases placing more potential fiduciary risks upon brokers and administrators.  We watched and reacted as more states attempted to limit the ability for smaller employers to self fund their benefits through the use of stop loss coverage and last, but certainly not least, we have seen a monumental increase in the DOL audits to our clients and the industry at large.  If there ever was a time that The Phia Group’s services were needed, this is it!

There is no question that health claims costs continue to skyrocket and the use of so called wrap discounts on many of these claims isn’t helping to reduce the burden.  If you are looking for some innovative options to stand out from the pack, please contact me as there are so many great ways to truly make a powerful impact on behalf of your employer plans.  We can save you and your plans significant claim dollars, you just need to strategize and identify your major pain points.

The next quarter will continue to be eventful so while you enjoy your summer weather, please be sure to let us know if you need some assistance – we are here for you.  Happy reading

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Doing It For Ourselves
Doing It For Ourselves

June 28th, 2012 is a date that will not live on in infamy or otherwise. On that date The Supreme Court of the United States (“SCOTUS”) took the path of least resistance, declaring that The Patient Protection and Affordable Care Act (“PPACA”) is Constitutional, while tearing the claws from the so-called “mandate’s” enforceability. In one fell swoop, SCOTUS both locked PPACA in as the law of the land, and eliminated the government’s ability to enforce the mandate against individuals. With the smoke clearing, and exchanges advancing nationwide, the eyes of regulators now shift to employers and self-funded plans. State commissioners, who since ERISA’s passage in 1974 have sought to control self-funded benefits, now wave the Obamacare flag in efforts to advance their long held desires. As the cost of providing insurance increases, and employers – long since thought untouchable by the self-funded industry – must decide between exiling employees to the exchange, or sampling self-funding, self-funded plans that implement cost containment solutions can position themselves to reap the rewards of this paradigm shift.

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The Supreme Court Opinion on PPACA
The Supreme Court Opinion on PPACA

The US Supreme Court upheld the sweeping 2010 healthcare law, declaring that Obama and Congress acted within their powers in requiring most Americans to obtain health insurance.

The ruling reaffirms the most ambitious and controversial undertaking of President Obama’s first term: attempting to guarantee that most of the 45 million Americans without insurance will get better access to medical care.

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July 2012 Newsletter


What a month it has been. Typical, not much happens in our industry in July but not this year! Less than two weeks after the historic decision, we here at The Phia Group did a webinar on the Supreme Court case with the largest audience we have ever had. Its great to know we are trusted for our efforts on behalf of all of you.

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