Two Steps Backwards

One of the big gaps in healthcare for us are trans people who have their insurance coverage through their employer whose insurance plans fall under ERISA (Employee Retirement Insurance Savings Act) because they do not fall under ACA (Obamacare) or state laws.

Aetna Dodges ERISA Bias Claim by L-3 Transgender Worker
Bloomberg
By Carmen Castro-Pagan
January 18, 2017
Aetna Life Insurance Co. dodged a claim by a transgender L-3 Communications Integrated Systems LP worker who alleged the insurer’s denial of her disability benefits was gender-identity discrimination in violation of ERISA ( Baker v. Aetna Life Ins. Co. , 2017 BL 11575, N.D. Tex., No. 3:15-cv-03679-D, 1/13/17 ).

The Employee Retirement Income Security Act doesn’t recognize such a bias claim, Judge Sidney A. Fitzwater of the U.S. District Court for the Northern District of Texas held Jan. 13. “It is for the Congress, not this court, to decide whether to create in ERISA a protection that the statute does not already provide,” Fitzwater said. However, the judge said the participant could move forward with her ERISA claim to recover benefits against the insurer giant.

Transgender issues involving employer-sponsored plans have been finding their way to court lately. In May 2016, a federal judge in Minnesota dismissed claims of discrimination under the Affordable Care Act by a nurse seeking coverage for her teenage son’s gender reassignment. The case is pending in the U.S. Court of Appeals for the Eighth Circuit. A month later, the American Civil Liberties Union filed a lawsuit against Dignity Health on behalf of a nurse who was denied coverage for gender reassignment treatment.

Fitzwater’s ruling is noteworthy for being one of the first decisions addressing the scope of ERISA when a transgender employee alleges being denied disability benefits for post-surgery recovery based on a discriminatory act.

Bad news for all the employees who have insurance through their employers,

The ACA doesn’t recognize a claim for discrimination based on gender identity, the court said in dismissing the claims against L-3 and Aetna.

In dismissing Baker’s ERISA discrimination claim, the court further said that it appeared that she based her claim on protections she alleged were found in Section 1557 of the ACA. Because Section 1557 doesn’t provide a cause of action for discrimination based on gender identity, Baker can’t rely on that section to support conferring such a right of action under ERISA, the court said.

I don’t understand the judges comment about Section 1557, here is what the rules says,

Section 1557 is the nondiscrimination provision of the Affordable Care Act (ACA). The law prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. Section 1557 builds on long-standing and familiar Federal civil rights laws: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973 and the Age Discrimination Act of 1975. Section 1557 extends nondiscrimination protections to individuals participating in:

• Any health program or activity any part of which received funding from HHS
• Any health program or activity that HHS itself administers
• Health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces.

Section 1557 has been in effect since its enactment in 2010 and the HHS Office for Civil Rights has been enforcing the provision since it was enacted.

On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al v. Burwell, enjoining the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. Accordingly, HHS’ Office for Civil Rights (HHS OCR) may not enforce these two provisions of the regulation implementing these same provisions, while the injunction remains in place. Consistent with the court’s order, HHS OCR will continue to enforce important protections against discrimination on the basis of race, color, national origin, age, or disability, as well as other sex discrimination provisions that are not impacted by the court’s order. Areas of sex discrimination that HHS OCR may continue to enforce include: harassment based on sex and allegations related to sex stereotyping that do not involve gender identity claims, as well as other forms of discrimination based on sex other than gender identity or termination of pregnancy.

So it seems to me that the judges are not following the Health and Human Services interpretation of the law based on other court rulings, including the 1989 Supreme Court ruling in Price Waterhouse v. Hopkins.