*113           B. Prohibition On Gender Rating in the Private Insurance Marketplace

The ACA provides new protections against sex discrimination in the private insurance marketplace, including banning “gender rating,” the practice of charging women higher premiums than men, often for the same service, by insurance companies  and prohibiting discrimination on the basis of pre-existing conditions.

Under prior law, many insurers implemented gender rating policies to charge women more for health insurance, particularly in the individual market, arguing that providing insurance to women costs more because of their higher health care utilization rates (particularly in terms of obstetric and gynecological care, including contraceptive services, supplies, and pregnancy care).  The ACA bans rate discrimination by qualified health plans except for a few specific categories: insurers may take into account geographic area, the number of individuals covered under the policy, and, subject to certain limits, age and tobacco use.  The ratio between the highest rate charged and the lowest rate charged for age may not be greater than three to one, and for tobacco use, may not be greater than 1.5 to 1.  However, these protections do not apply to the large group market, so insurers may still implement gender-rating policies in plans issued to larger employers.  The ACA also includes a provision extending HIPPA's pre-existing condition exclusions to the individual and small group markets, which bars health-status based discrimination as to a number of conditions unique to or predominantly affecting women, including past history of a Cesarean section, past domestic violence victimizations, or breast or gynecological cancers.