Advocates across the country have long worked to ensure that health insurance is not designed in a way that discriminates against certain groups of individuals, such as people living with HIV, older Americans, and even women. For these advocates, last week was an exciting one as Colorado and the District of Columbia each took new steps towards prohibiting insurers from discriminating against health insurance enrollees based on gender identity and sexual orientation.

In doing so, regulators in Colorado and the District of Columbia issued sub-regulatory guidance to insurers (known in both states as “bulletins”). While this type of guidance does not create new legal requirements, bulletins typically express the state’s interpretation of existing law or general statements of policy, and insurers are likely to conform to guidance issued by the state agency empowered to regulate them. Such guidance is therefore likely to spur a change in practice, if not in law.

In Colorado, Bulletin B-4.49 states that existing state law prohibits discrimination in health coverage based on an individual’s sexual orientation (which includes heterosexuality, homosexuality, bisexuality, and transgender status). The Colorado Division of Insurance went on to specify that state law “prohibit[s] the denial, cancellation, limitation, or refusal to issue or renew health coverage because of a person’s sexual orientation” and expressly prohibited insurers from:

• Imposing different premium rates or costs based on sexual orientation;
• Designating sexual orientation as a preexisting condition; or
• Denying, excluding, or otherwise limiting coverage for medically necessary services based on sexual orientation.

In the District of Columbia, Bulletin 13-IB-01-30/15 (press release here) states that the District’s existing laws on discrimination based on “gender identity or expression” prohibit certain types of exclusions in health insurance policies. Examples of these discriminatory exclusions include: “any treatment or procedure designed to alter an individual’s physical characteristics to those of the opposite sex;” “sex transformation operations and related services;” and “any treatment, drug, service or supply related to changing sex or sexual characteristics.” While the bulletin requires insurers to remove this (and similar) exclusionary language from their policies, the bulletin is explicit that this action does not require coverage for any particular procedure—rather, it clarifies that insurers cannot deny coverage for services for some people (including, for example, transgender people) that are covered for other people based on gender identity or expression.

In both states, the bulletins pointed to existing state legal requirements—laws that prohibit unfair trade practices—as the basis for the interpretation. Because unfair trade practice laws are common, regulators in other states may want to consider doing the same and joining California and Oregon—and, now, Colorado and the District of Columbia—in prohibiting this type of discrimination.

While the actions in Colorado and the District of Columbia are not tied to the requirements of the Affordable Care Act (and, instead, rest on existing state law), it is worth noting that the law includes a number of protections against discrimination in health insurance (particularly for people purchasing health coverage in the individual and small group markets, both inside and outside an exchange). These protections include:

• Ensuring that insurers that offer certain products cover an essential health benefits package that does not discriminate based on age, disability, or expected length of life, takes into account the health care needs of diverse segments of the population, and does not allow denials of benefits based on age, life expectancy, or disability;
• Prohibiting insurers that offer certain products from discriminating on the basis of race, color, national origin, disability, age, sex, gender identity or sexual orientation; and
• Prohibiting insurers that offer certain products from discriminating against individuals with significant health needs, including in the ways that insurers market their products and design their benefits.

We will keep you posted on any and all developments as state regulators and insurers consider what these obligations mean and how to best ensure that health insurance does not discriminate against certain groups of people. Stay tuned to CHIRblog!