HHS to Health Insurers: Same Treatment for Same-Sex Couples

March 18, 2014 | By Lawrence J. Tabas

A release and a blog post from the Department of Health and Human Services (“HHS”) on Friday announced that starting in 2015, health insurance companies will be required to offer coverage to same-sex spouses if they offer coverage for opposite-sex spouses. The release, in the form of Frequently Asked Questions (“FAQs”), clarified certain regulations implementing the Affordable Care Act (“ACA”). The blog post, from Dr. Matthew Heinz, HHS Director of Provider & LGBT Outreach, lauded the clarification as “one more step toward making health care coverage more accessible and equitable for married same-sex couples.”

How will the regulations work in practice? According to the FAQs, the regulations implementing the ACA establish nondiscrimination standards. Specifically, 45 CFR § 147.104(e) provides that health insurance companies cannot engage in practices that discriminate on the basis of certain characteristics, like sexual orientation. The FAQs state that a health insurance company engages in discriminatory practices if it offers coverage of an opposite-sex spouse and chooses not to offer coverage of a same-sex spouse under the same terms and conditions. The insurance company cannot discriminate regardless of where the health insurance policy is “offered, sold, issued, renewed, in effect, or operated, or where the policy holder resides.” It should be noted that this nondiscrimination policy only applies where the same-sex couple’s marriage was validly entered into in a jurisdiction that allows same-sex marriage.

The clarification of the regulations comes as part of a succession of announcements from the Obama administration focusing on health insurance coverage under the ACA. The administration has also recently extended for another month the Pre-Existing Condition Insurance Plan (coverage temporarily available during the transition to the health insurance exchanges for those with pre-existing conditions). Additionally, the administration announced that health insurance companies offering health plans under the ACA must accept premium payments from the government in connection with low-income AIDS patient enrollees. According to Dr. Heinz, the expansion of coverage to same-sex couples “will further enhance access to health care for all Americans.”

The Health Law Gurus™ will continue to follow the implementation of the ACA.

To access the FAQs, click here.

To access Dr. Heinz’s blog post, click here.

About the Authors

Lawrence J. Tabas


Lawrence is the Chair for Obermayer’s Health Care Law Department and Election Law Practice Group. Lawrence’s Health Care Law legal experience includes the representation of Pennsylvania County governments in Behavioral Health Managed...

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