New ACA nondiscrimination rules: But these aren’t the rules you’re looking for

The Department of Health & Human Services (HHS) just issued proposed nondiscrimination rules that would be applied under the health reform law. 

After reading a press release titled something to the effect of “New ACA nondiscrimination rules issued,” we were reminded of the scene from Star Wars: A New Hope in which Obi-Wan Kenobi plays a Jedi mind trick on a stormtrooper and says, “These aren’t the droids you’re looking for.”

Why, of all things, did that pop into our head? Because, in fact, these aren’t the nondiscrimination rules we’re looking for.

Still waiting …

As you’ll likely recall, when the ACA was passed, the feds said it would subject group health plans to nondiscrimination rules similar to those that currently apply to self-insured group health plans. The rules would prevent health plans from discriminating against highly compensated employees by offering them benefits not open to their lesser-paid counterparts.

The problem is, the feds said the rules wouldn’t apply until official guidance had been released about them. So feds kept employers waiting and searching for the guidance. It was then expected to finally be released in 2014, but it was delayed due to some lingering questions IRS officials had.

And so we waited. Then, behold, nearly two years later “New ACA nondiscrimination rules issued.” But much like the lowly stormtrooper, we’ve been tricked.

What’s in the new rules

In a nutshell, the new HHS proposed rules look to snuff out all forms of race, sex, color, national origin, age and/or disability discrimination in the health insurance marketplace — a noble endeavor, but not the one we were looking for.

While some of these forms of discrimination had already been banned under the ACA, the new rules further clarify and strengthen protections for individuals.

For example, the proposed rule establishes that the prohibition on sex discrimination includes discrimination based on gender identity. Discrimination on the basis of sexual orientation would also be barred. This piggybacks on other federal rulemaking that made it illegal for federal contractors to discriminate against individuals based on sexual orientation or gender identity.

The proposed rules would apply to health insurance marketplaces, any health program that the HHS administers, and any health program or activity receiving funding from the HHS.

The rules’ protections would also be extended to individuals enrolled in plans offered by insurers participating in the health insurance exchanges. In other words, if your health insurer offers a plan on the exchanges, all of its plans are barred from discriminatory benefit designs or marketing practices.

HHS Secretary Sylvia M. Burwell said in a news release, “This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system. This is another example of this administration’s commitment to giving every American access to the health care they deserve.”

As for the other droids — ahem, nondiscrimination rules — we’re still waiting.