The proposed rule affirms protections on nondiscrimination based on sexual orientation and gender identity, and protection of access to reproductive health care.
The Department of Health and Human Services (HHS) on Monday proposed a rule that implements Section 1557 of the Affordable Care Act (ACA) that prohibits discrimination based on race, color, national origin, sex, age, and disability in certain health programs and activities.
The proposed rule restores and strengthens civil rights protections for patients and consumers in certain federally funded health programs and HHS programs after the Trump administration limited the scope and power to cover fewer programs and services. It affirms protections against discrimination on the basis of sex, including sexual orientation and gender identity consistent with the U.S. Supreme Court’s ruling in Bostock v. Clayton County and reiterates protections from discrimination for seeking reproductive health care services.
The Supreme Court decision came down days after HHS under the Trump administration finalized a rule to “restore the rule of law” and revise Section 1557 of the ACA, which bans discrimination in health care, and rolled back protections for transgender people. The rule would protect males or females from health care discrimination, but not those who are gay or transgender. Section 1557 applies to those who receive federal funding from HHS, the Health Insurance Marketplace, and health programs administered by HHS.
“This proposed rule ensures that people nationwide can access health care free from discrimination,” HHS Secretary Xavier Becerra said in an announcement. “Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.”
Last year HHS overturned the Trump administration policy and announced that the Office for Civil Rights would enforce prohibitions on discriminations based on sex, including sexual orientation and gender identity.
The Section 1557 Notice of Proposed Rulemaking (NPRM) aims to address gaps identified in prior regulations. If finalized as proposed, the rule would:
- Reinstates the scope of Section 1557 to cover HHS’ health programs and activities
- Clarifies the application of Section 1557 nondiscrimination requirements to health insurance issuers that receive federal financial assistance
- Aligns regulatory requirements with federal court opinions to prohibit discrimination on the basis of sex including sexual orientation and gender identity
- Makes clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination”
- Ensures requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures
- Requires entities to give staff training on the provision of language assistance services for individuals with limited English proficiency (LEP), and effective communication and reasonable modifications to policies and procedures for people with disabilities
- Requires covered entities to provide a notice of nondiscrimination along with a notice of the availability of language assistance services and auxiliary aids and services
- Explicitly prohibits discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities
- Clarifies that nondiscrimination requirements applicable to health programs and activities include those services offered via telehealth, which must be accessible to LEP individuals and individuals with disabilities
- Interprets Medicare Part B as federal financial assistance
- Refines and strengthens the process for raising conscience and religious freedom objections
For more information, click here for the HHS fact sheet on the proposed rule.