Last month, the Department of Health and Human Services (“HHS”) announced that gender identity and transgender individuals are protected from sex-based discrimination under the Affordable Care Act. After many court cases and diverging interpretations, the Supreme Court reached a definitive answer and reversed the Trump administration’s policy.
Transgender employees must be given the same level of benefits and access to health care as the other members of your workforce—free from discrimination or restrictions. The changed interpretation of the ACA’s Section 1557 expressly protects employees within the LGBTQ community and aims to hold businesses accountable. Alongside new EEOC requirements, your business will need to take new considerations into account.
More specifically, this update may necessitate a review of your existing healthcare benefits and policies. As the HHS’s statement marked the immediate enforcement of the protections, let’s review the legal protections and best practices to keep your benefits administration compliant!
Checklist for Upholding Transgender Rights Under the ACA
The ACA’s decision towards inclusivity permits more expansive benefit and nondiscrimination policies and practices than what federal or state law requires. At the same time, the new interpretation has potential exceptions, such as in cases where neither the sponsoring employer nor the health care plan in question receives HHS funding.
Either way, you should know whether your plans contain discriminatory provisions that could risk enforcement action by the HHS or discrimination claims by your workforce. Regardless of your perception of your health care plans, re-examine them to make absolute certainty they are upholding transgender rights.
Here are 6 best practices to ensure your health care plans fulfill ACA standards and protect transgender employees:
- Review benefits coverage terms for gender-affirmation surgery, gender dysphoria, and specific pharmacy and mental health benefits to determine whether or not the health care plans uphold transgender healthcare rights.
- Clarify eligibility for same-sex spouses and same-sex domestic partners to determine if it is equal amongst other employees and their spouses and domestic partners.
- Assess employee assistance programs (EAPs) and any related services available to transgender workers to ensure there is sufficient coverage to meet the specific needs of transgender employees.
- Review your health care plan administration process and benefits claim forms for potentially discriminatory language or concerns, including issues related to sexual-orientation and gender-identity discrimination.
- Ensure there is reasonable access to providers experienced with and supportive of transgender health care.
- Consider expanding family planning benefits (both within and outside group health plans) to include LGBTQ employees (e.g., adoption assistance, foster care, reproductive technology assistance).
Red flags to avoid when examining your health care related policies, include:
- Providing coverage to opposite-sex spouses but not same-sex spouses (or domestic partners);
- Charging transgender employees a higher premium for coverage;
- Not providing medically necessary mental health benefits, hormone therapy and some level of gender-affirmation surgical benefits;
- Limiting family benefits or sex-specific care based on an individual's sex assigned at birth, gender identity or recorded gender; and
- Not providing disability benefits for short-term or long-term disability due to gender dysphoria or gender-affirmation surgeries.
Though many questions remain around the current range of requirements, HHS and courts will likely have more compliance information to offer in the days ahead. See SHRM’s complete checklist on avoiding LGBTQ discrimination for further guidance.
For more information on prioritizing inclusivity, check out, “Are Your HR Policies LGBTQ Inclusive—and EEOC Compliant?”
Benefits Administration for a Diverse Workforce
EPAY Systems makes supporting the LGBTQ members of your workforce easy. With our benefits administration solutions, you can offer all the members of your workforce equal access to top-notch benefit programs. Our software is designed to make comparing and choosing the plan best plan easier for your employees, and cut your time-consuming administrative tasks in half.
We ensure your Affordable Care Act (ACA) reporting requirements, COBRA administration, and data transfers to insurance carriers are all fulfilled smoothly and without mistakes. From enrollments to renewals, our software takes care of all the heavy lifting.
The best part? Its self-service capabilities even allow employees to enter, review and update their own benefits data online, ensuring that all members of your workforce are able to get the exact kind of care they need. To learn more ways you can help employees feel confident choosing and using a plan, check out our other blog, “Key Features That Will Optimize Your Benefits Administration Strategy.”