Tell Health and Human Services to include LGBT families in health care reform

As the Affordable Care Act becomes law over the next few years,
we here at Family Equality will continue to submit comments to
ensure that health care reform includes all families, including
LGBT-headed families.  Below are the comments we submitted today
on preventing discrimination.  Click
to read other comments and submit your own.

October 31, 2011

The Honorable Kathleen Sebelius

Secretary of Health and Human Services

U.S. Department of Health and Human Services

200 Independence Avenue, SW

Washington, DC 20201

RE: [CMS-9989-P] RIN 0938-AQ67 – Patient Protection and
Affordable Care Act; Establishment of Exchanges and Qualified
Health Plans

Dear Secretary Sebelius:

Family Equality Council is the national organization working to
ensure full social and legal equality for the approximately 1
million lesbian, gay, bisexual, and transgender (LGBT) parents
raising more than 2 million children across the U.S. by providing
direct support, educating the American public, and securing
inclusion in legislation, policies, and practices impacting
families. On behalf of our families, we would like to thank the
Secretary and the Department for their commitment to the health of
all Americans.  The Affordable Care Act provides a rich
opportunity to ensure that underinsured individuals and families
across the country have the opportunity to access necessary care. 
In particular, the formation of the Exchanges and the Qualified
Health Plans (QHPs) will assist underserved populations to afford
previously unattainable comprehensive coverage.

Below we offer specific recommendations on the regulations that
specifically impact LGBT parents and their children.   First,
however, we would like to echo the concerns of our colleagues and
recommend that the Exchanges and QHPs be implemented with
culturally competent and linguistically appropriate care to ensure
we are reaching traditionally underserved populations.


We appreciate the explicit inclusion of sexual orientation and
gender identity in the non-discrimination provision.  We urge HHS,
however, to issue guidance soon after the publication of the final
rule explaining the scope of discrimination protections on the
basis of sexual orientation and gender identity.  A description of
the types of discrimination against LGBT people that are prohibited
by the non-discrimination rule should include discrimination on the
basis of whether a family relationship is legally recognized by the
state or by the federal government. This prohibition should also
include charging different rates for certain families because of
their construct and refusing coverage for benefits and services
available to similarly-situated families.  Insurers, employers,
and providers often discriminate against same-sex couples and their
children on the basis of sexual orientation or gender identity by
claiming an inability to recognize the familial relationship
because of federal or state laws banning same-sex marriage,
second-parent adoption, or other forms of relationship
recognition.  State and federal laws barring relationship
recognition for state and federal benefits do not prohibit QHPs
from recognizing family relationships for the purposes of providing
health insurance, and HHS should issue guidance to explain that
this type of discrimination is prohibited in the Exchanges.

Definition of Family

The proposed regulations currently contain no definition of
“family.”  Because the term is used frequently throughout the
proposed rules and may cause confusion for applicants and
beneficiaries, as well as the employees implementing the
regulations, we recommend that HHS add a definition of “family”
to 45 C.F.R. § 155.20 – Definitions and 45 C.F.R. § 156.20 –

We propose the following definition, which is based on regulations
from the Office of Personnel Management[1]
and regulations implementing the Family Medical Leave Act:[2]

Family means a
husband or wife as defined or recognized under State law, including
common law marriage in states where it is recognized; a domestic
partner or individual in a civil union as defined or recognized
under State law; a biological, adoptive, step or foster parent,
legal guardian, or any other individual standing in loco
to a child; a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in
loco parentis
; or any other person related by blood or
affinity whose close association with the person is the equivalent
of a family relationship.

Rating Variations

Under the proposed regulations, the issuer of a Qualified Health
Plan must cover the following groups “using some combination of
the following categories”: individuals; two-adult families;
one-adult families with a child or children; and all other
families.  With a strong definition of family, such as the
definition suggested above, LGBT families should be
covered under all QHPs. Additionally, prohibiting discrimination on
the bases of sexual orientation and gender identity, as well as
familial and marital status should protect LGBT families from
discrimination in accessing a QHP.  Without the combination of
specific non-discrimination language and the broad definition of
family outlined above, however, we fear that a QHP issuer may be
permitted to discriminate against or exclude many LGBT
families.   We therefore encourage HHS to take the above
recommendations and issue further guidance and/or interpretation of
45 C.F.R. § 156.255 to ensure inclusion of LGBT families.

In conclusion, we would like to thank the Secretary and the
Department of Health and Human Services for creating the
opportunity to comment on the proposed regulations.  We strongly
believe that if implemented with care, the Exchanges and Qualified
Health Plans have the potential to allow millions of underserved
Americans, including countless LGBT families, to access affordable
health care.

Please feel free to contact Emily Hecht-McGowan, Director of Public
Policy for Family Equality Council, with any questions either by
telephone (202.496.1285) or email at

Thank you,

Jennifer Chrisler

Executive Director

Family Equality Council

See, e.g. 5 C.F.R. § 630.201 Definitions (Family
member means an individual with any of the following relationships
to the employee: (1) Spouse, and parents thereof; (2) Sons and
daughters, and spouses thereof; (3) Parents, and spouses thereof;
(4) Brothers and sisters, and spouses thereof; (5) Grandparents and
grandchildren, and spouses thereof; (6) Domestic partner and
parents thereof, including domestic partners of any individual in
paragraphs (2) through (5) of this definition; and (7) Any
individual related by blood or affinity whose close association
with the employee is the equivalent of a family relationship).

Wage and Hour Division, Administrator’s Interpretation
No. 2010-3, Clarification of the definition of “son or
daughter” under Section 101(12) of the Family and Medical Leave
Act (FMLA) as it applies to an employee standing “in loco
parentis” to a child, Issued by Deputy Administrator Nancy J.
Leppink, June 22, 2010.