In the broadest sense, the new health care law forbids sex discrimination in health insurance. Previously, there was no such ban, and insurance companies took full advantage of the void.
“The health care industry and health care insurance in general has been riddled with the most discriminatory and unfair practices to women,” said Marcia D. Greenberger, the founder and co-president of the National Women’s Law Center. “This law is a giant leap forward to dismantling the unfairness that has been a part of the system.”
Until now, it has been perfectly legal in most states for companies selling individual health policies — for people who do not have group coverage through employers — to engage in “gender rating,” that is, charging women more than men for the same coverage, even for policies that do not include maternity care. The rationale was that women used the health care system more than men. But some companies charged women who did not smoke more than men who did, even though smokers have more risks. The differences in premiums, from 4 percent to 48 percent, according to a 2008 analysis by the law center, can add up to hundreds of dollars a year. The individual market is the one that many people turn to when they lose their jobs and their group coverage.
Insurers have also applied gender-rating to group coverage, but laws against sex discrimination in the workplace prevent employers from passing along the higher costs to their employees based on sex. Gender rating has taken a particular toll on smaller or midsize businesses with many women, like home-health care, child care and nonprofits. As a result, some businesses have been unable to offer health coverage or have been able to afford it only by using plans with very high deductibles.
In addition, individual policies often excluded maternity coverage, or charged much more for it. Now, gender rating is essentially outlawed, and policies must include maternity coverage, considered “an essential health benefit.”
“It has to be a part of the premium just like heart attacks, prostate cancer or any other condition,” Ms. Greenberger said.
Despite her enthusiasm for many aspects of the new law, Ms. Greenberger said she was profoundly disappointed in provisions that she thought would limit women’s access to abortion services.
Advocates for women’s health said one of the new law’s benefits would be to ban the denial of health coverage to women who have had a prior Caesarean section or been victims of domestic violence. Some companies providing individual policies have refused coverage in those circumstances, regarding Caesareans or beatings as pre-existing conditions that were likely to be predictors of higher expenses in the future.
In a statement issued Thursday, Senator Mikulski said: “One of my hearings revealed that a woman was denied coverage because she had a baby with a medically mandated C-section. When she tried to get insurance coverage with another company, she was told she had to be sterilized in order to get health insurance. That will never, ever happen again because of what we did here with health care reform.”
Peggy Robertson, 41, who lives in Centennial, Colo., is the woman to whom Senator Mikulski referred. Ms. Robertson was interviewed by The New York Times in June 2008 and testified at the hearing last October. Her husband, a chiropractor, is self-employed, so they rely on the individual market to cover them and their two sons. In 2007, they had insurance, but considered switching companies when a broker suggested they might find a better deal. They applied to a company called Golden Rule, which is based in Indianapolis and owned by UnitedHealthcare. The company rejected Ms. Robertson because of her Caesarean, explaining in a letter that she would have been eligible if she had been sterilized. When Ms. Robertson went public with her story, the word “sterilized” seemed to provoke particular outrage, she said.
Golden Rule later began offering coverage to women who had had Caesareans, but by charging extra if they wanted maternity coverage, or issuing policies that excluded maternity care.
In a telephone interview on Friday, Ms. Robertson said: “Barbara Mikulski told me, she promised me, ‘This will never happen again.’ She did it. It’s wonderful.”
Ms. Robertson’s only disappointment was that some of the new rules would not take effect until 2014.
But Ms. Greenberger said that while it is true that the specific requirements will be delayed until 2014, some changes should actually happen much sooner, because the law’s overarching ban on sex discrimination takes effect immediately. The legalese outlawing sex discrimination is not easy to find or to parse, but it refers to existing laws, like the Civil Rights Act and Title IX, to say that the same protections apply to people seeking health care and insurance.
The passage, Sec. 1557 on page 368 of the 2,074-page bill, says: “Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an executive agency or any entity established under this title (or amendments).”
What it means, Ms. Greenberger said, is that no organization receiving any federal money at all — as insurers generally do — can discriminate on the basis of sex. Gender rating, she said, “is a problem whose days are numbered.”
Ms. Greenberger acknowledged that insurance companies were masters at protecting their bottom line, but said she did not see an obvious way around the new rules. “I never want to underestimate what a creative mind might be able to come up with,” she said, “but I believe this is pretty straightforward.”