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Health and Access to Care and Coverage for LGBT Individuals in the U.S. – Impact of Policies on Coverage and Access to Care – 8539-02 « » The Henry J. Kaiser Family Foundation

Health and Access to Care and Coverage for Lesbian, Gay, Bisexual, and Transgender Individuals in the U.S.

Impact of Policies on Coverage and Access to Care

In addition to specific health needs, the health of and access to care for LGBT communities is shaped by federal and state policies on insurance, compensation and benefits, and marriage. In 2010, President Obama asked the Secretary of Health and Human Services (HHS) to identify steps to improve the health and well-being of LGBT individuals, families, and communities, which resulted in a series of recommended actions that are now being implemented.1 Additionally, the passage of the ACA in 2010 and the overturning of DOMA in 2013 affect access to care and coverage for LGBT individuals and their families, expand nondiscrimination protections, increase data collection requirements, and support family caregiving. Finally, states and private organizations have also moved to add nondiscrimination protections and enhance coverage for LGBT individuals.

Impact of the ACA

The ACA makes far-reaching changes in health coverage and delivery of care for all Americans. For LGBT populations, three major areas are of particular saliency: 1) expanded access to coverage and insurance market reforms, 2) new “nondiscrimination” protections, and 3) requirements for data collection and research.

Coverage
  • The ACA will extend coverage to millions of uninsured persons through the expansion of Medicaid in some states, as well as the creation of new federally subsidized health insurance marketplaces. In states that expand their Medicaid programs, Medicaid eligibility will be based solely on income, and will be available to most individuals with incomes below 138% FPL regardless of their family status or disability. Uninsured individuals who are not eligible for Medicaid can purchase coverage in insurance marketplaces, with subsidies available to many individuals with incomes below 400% FPL to help offset the costs of premiums. It is estimated that nearly 390,000 uninsured LGBT individuals could qualify for Medicaid in states that plan to expand Medicaid, and that approximately 1.12 million uninsured LGBT individuals could receive subsidies to help with the cost of coverage in insurance marketplaces.2
  • As of January 2014, individuals can no longer be denied insurance due to a pre-existing condition, such as HIV infection, mental illness, or a transgender medical history. Additionally, new private plans are now required to cover recommended preventive services without cost sharing. This includes screenings for HIV, STIs, depression, and substance use. And, those who gain coverage through Medicaid or in the state marketplaces will have coverage for a set of essential health benefits, including prescription drugs and mental health services.
Nondiscrimination Protections
  • As described above, bias and discrimination in the health care system have been an unfortunate reality for many LGBT people.3 In addition to provider level discrimination, some policies in the insurance and financing system have disproportionately affected LGBT people, including pre-existing condition clauses permitting plans to deny insurance to people with conditions such as HIV, mental illness, or to transgender individuals, who may require specific health care services.4 Furthermore, some plans have interpreted these exclusions broadly and used them to deny transgender people coverage for services that are not related to gender transition.5
  • Section 1557 of the ACA prohibits discrimination based on sex, defined to include gender identity and sex stereotypes (but not sexual orientation), in any health program receiving federal funds (such as Medicaid, Medicare, and providers who receive federal funds). Separate federal regulations issued by the Department of Health and Human Services governing the health insurance marketplaces and plans offering the essential health benefits bar discrimination in insurance provisions based on sexual orientation and gender identity.6 In addition to the new federal law, several states have nondiscrimination policies. Eight states (CA, CO, DE, IL, ME, OR, VT, WA) plus DC prohibit discrimination based on sexual orientation and gender identity.7 Additionally, eight states (CA, CN, CO, IL, MA, OR, VT, WA) and DC prohibit transgender exclusions in health insurance through legislation or regulation.8
 Data Collection
  • The ACA calls for the inclusion of routine data collection and surveillance on health disparities, which HHS and many other groups have recognized includes LGBT populations. National health care surveys will include questions on sexual orientation within the next couple of years so that analysis can be conducted specifically on LGB populations; efforts to develop questions on gender identity for national surveys are underway as well. Research on LGBT health has increased over time, and HHS has sponsored efforts to collect and report data on LGBT health, as evidenced with the inclusion of LGBT-specific data in publications such as the National Healthcare Disparities Report, the addition of Healthy People 2020 goals to increase routine data collection efforts on LGBT populations, and early efforts of collection and surveillance on sexual orientation and gender identity in national health care surveys.9 As mentioned above, as of 2013, the NHIS includes a question on sexual orientation. In addition, several agencies within HHS have taken steps toward broader data collection. For example, the CDC has approved sexual orientation and gender identity questions that can be used on the state-administered Behavioral Risk Factor Surveillance System surveys and the Substance Abuse and Mental Health Services Administration is considering adding questions to its National Survey on Drug Use and Health. However, it is still not routine for researchers and health data systems to collect and report data by individuals’ sexual orientation and gender identity.
  • At the provider and patient level, some groups advocate for clinicians to collect patient information on sexual orientation and gender identity to better understand an individual’s health profile and needs. Some providers have expressed discomfort with and inadequate knowledge on soliciting this information. Advocates’ recommendations include being direct with patients about why questions on sexual orientation and gender identity are being asked, ensuring that confidentiality will be maintained, informing patients of the right to opt-out, and asking multiple questions to assess both sexual orientation and gender identity.10 In particular, the IOM recommends collecting such data in electronic medical records (EMRs), which are growing in use.11

Impact of DOMA Ruling

Spousal coverage is an important pathway to insurance for millions of people, particularly in the context of employer-sponsored health insurance. Until recently, the federal government did not recognize same-sex marriage due to DOMA, which therefore limited LGB individuals’ access to a wide range of benefits, including health coverage as a dependent spouse. In June 2013, the Supreme Court issued a ruling in United States v. Windsor that overturned a portion of DOMA and requires the federal government to recognize legal same-sex marriages. The DOMA ruling and subsequent Agency policy interpretations and guidance have resulted in expanded access for some LGB families to a range of benefits, including dependent health coverage and family and medical leave. For more information on the impact of federal policy changes, please refer to Table 2.

  • The Supreme Court decision has prompted federal agencies to reverse previous limitations on spousal benefits in some federal programs. For example, all federal employees who are legally married now have the same eligibility for dependent spousal health coverage in the Federal Employees Health Benefits Program (FEHBP) as well as other dependent benefits, such as dental and vision insurance, long-term care insurance, and flexible spending accounts.12 The Department of Labor has also clarified that employers must now recognize married same-sex couples for federally required benefits such as COBRA, the program that offers employees and their families a temporary extension of group health coverage in the event that an employee loses his or her job.13
  • More broadly, as a result of the Supreme Court ruling, the Internal Revenue Service (IRS) has ruled that it now recognizes all legally married couples (based on “state of celebration,” regardless of whether or not the couple lives in a state that recognizes same-sex marriage) and that they can file federal taxes as “married,” which affects a number of health-related financial issues such as the taxes they pay on health benefits.14 For example, dependent coverage, including spousal coverage, is excluded from an employee’s taxable income. However, prior to the Supreme Court ruling, coverage for a domestic partner was considered taxable income, which raised taxes for those who received this coverage. The Supreme Court decision means that married same-sex couples no longer face this higher tax burden at the federal level.15
  • The decision also affects LGB individuals’ eligibility for assistance under the ACA’s coverage expansion, which is based in part on applicants’ family structure and incomes. Federal regulations have clarified that insurance marketplaces will recognize same-sex marriages and base eligibility for tax credits on couples’ income.16 The federal government is encouraging states to recognize same-sex marriages for the purpose of determining Medicaid income eligibility, but the ultimate determination is under state jurisdiction since Medicaid is a federal-state partnership.17
  • At the same time, the Supreme Court’s ruling does not require private companies to provide health insurance to same-sex spouses. Rather, access to spousal coverage is governed by a patchwork of state-level policies as marriage and partnership recognition are still based on state laws. In the wake of the 2013 DOMA ruling, several states have overturned bans on same sex marriage, and in October 2014, the Supreme Court refused to hear further argument on these cases, effectively legalizing same sex marriage in several more states. As of October 2014, 32 states and the District of Columbia recognize same-sex marriages.18 In these states, employees’ same-sex spouses should have the same eligibility as opposite sex spouses for dependent health insurance (Figure 6). In addition to marriage recognition laws, some states had passed separate measures that require fully insured employers in the state to cover same-sex spouses. These measures also encouraged employers to extend benefits to those in civil unions and domestic partnerships. While same sex marriage is now legal in most states, of the 18 states that still prohibit it, none have an insurance parity requirement.
Figure 6: Relationship Recognition and Insurance Coverage Policies for Same-Sex Partners, by State

Figure 6: Relationship Recognition and Insurance Coverage Policies for Same-Sex Partners, by State

  • Still, many states impose bans on same-sex marriages or do not recognize same-sex marriages that were conducted legally in other states. To date, private employers in these states are not required to extend dependent coverage to same-sex spouses, but employers may choose to do so regardless of state marriage laws. Nationally, four in ten (39%) firms that offered health insurance provided benefits to unmarried same-sex domestic partners in 2014, up from 21% in 2009. This varies by firm size, region, and industry, with larger companies, those in the Northeast, and manufacturing field most likely to offer coverage to same-sex partners (Table 3).
  • A recent development occurred in May 2014, when HHS invalidated a 1981 rule that allowed Medicare to deny coverage for transsexual surgery. 19 As a result, insurance plans are no longer able to use this rule to deny claims related to transsexual surgery, although they may still use alternate rationale to deny these claims. Several employers have also moved to make their plan offerings more comprehensive by removing exclusions for transgender health services. Among major U.S. employers, there has been a five-fold increase in the number of businesses offering at least one health plan that includes coverage of transgender services such as counseling, hormone therapy, and surgical procedures.20

Family Caregiving Issues

Caring for ill family members is another area of policy that has been evolving in recent years for LGBT people and their families. The Family Medical Leave Act (FMLA) provides workplace protections to employees if they take time off to care for a family member in the event of illness or birth of a child. Under DOMA, LGB individuals were not afforded the law’s protections to care for a spouse because the federal government did not recognize same-sex marriages; however, the Supreme Court’s decision extends the law to all legally married individuals at qualifying employers. While this is an important step, it does not cover all workers. Additionally there are still other barriers that can limit the reach of these new policies.

  • The Department of Labor (DOL) expanded FMLA in 2013 after the ruling on DOMA to include same-sex spouses married and residing in states that recognized same-sex marriage.21 In June 2014, the DOL proposed rules to further expand FMLA to include same-sex couples based on state of celebration, regardless of their state of residence.22
  • Paid sick leave is another important benefit that many workers do not have. Because it is legal in more than half the states to fire employees based on their sexual orientation or gender identity, LGBT employees without paid leave may be more reluctant to take time off when they or their family members are sick.23
  • In addition to workplace protections, visiting loved ones in the hospital or another health care setting has not always been guaranteed for LGBT people. However, federal regulations in effect since 2011 require hospitals participating in Medicare and Medicaid (virtually all hospitals in the U.S.) to adopt written policies and procedures regarding a patient’s rights to visit his or her same-sex partner and state explicitly that discrimination based on sexual orientation and gender identity are prohibited.24
  • Concerns have also been raised about discrimination against older LGBT individuals and their families in long-term care facilities. Recent federal regulations now provide residents of long-term care facilities, such as nursing homes, the right to have visitors of their choice, including same-sex spouses and domestic partners.25

***

A number of health challenges disproportionately affect LGBT communities, particularly the HIV/AIDS epidemic, stigma and violence, substance abuse, negative experiences in the health care system, and lack of insurance coverage. In addition to health outcomes, access to care has been a concern and intersects with many broader issues, including relationship recognition, legal identity recognition policies for transgender individuals, training and cultural competency of health professionals, as well as overarching societal and cultural issues, particularly a long history of stigma and discrimination. Recent policy and legal changes will serve to mitigate some of these challenges. In particular, the years ahead will see both the full implementation of the ACA as well as the full effects of overturning elements of DOMA, and for the first time in the nation’s history, same-sex marriage is legal in the majority of states.  This convergence of policy and legal breakthroughs holds promise for broader access to health services, coverage, and benefits for LGBT communities.

The authors thank Kellan Baker of the Center for American Progress and Sean Cahill of the Fenway Institute for their thoughtful review and comments.

Health Challenges Tables