The U.S. Department of Health and Human Services (HHS) recently announced a proposed rule to strengthen nondiscrimination in healthcare by advancing health equity and reducing disparity.  Entitled “Nondiscrimination in Health Programs and Activities,” the proposed rule revises Section 1557 of the Affordable Care Act (ACA) and also includes proposals to provisions in the nondiscrimination regulations from the Centers for Medicare & Medicaid Services (CMS).

The proposed rule underscores that healthcare should be a right and not dependent on looks, location, love, language, or the type of care needed. Accordingly, the proposed rule codifies protections against discrimination based on sex, including sexual orientation and gender identity, as set forth in Bostock v. Clayton, in which the U.S. Supreme Court held that it is unlawful to discriminate against an individual because of the individual’s sexual orientation or gender identity.  While restating protections provided in Section 1557 of the ACA, it also promotes congressional intent, and legal precedent, along with the Biden-Harris Administration’s priority of advancing gender identity and sexual orientation, reproductive healthcare services and racial equity and support for underserved communities through President Biden’s executive orders.

The ACA is one of the federal government’s most powerful tools for ensuring nondiscriminatory access to healthcare. It prohibits discrimination based on race, color, national origin, sex, age, and disabilities related to certain healthcare programs and activities. By strengthening the provisions of Section 1557, the proposed rule seeks to further protect the civil rights of those who access or seek access to healthcare programs or activities by eliminating avoidable differences in health outcomes for those who are underserved. The proposed rule also seeks to provide the care and support that those who are unheard need to survive.

To advance these protections, the proposed rule seeks to address gaps identified in prior regulations. This will include:

• Reinstating the scope of Section 1557 to cover HHS’ health programs and activities;
• Clarifying the application of Section 1557 nondiscrimination requirements to health insurance companies that receive federal financial assistance;
• Aligning regulatory requirements with federal court opinions that prohibit discrimination based on sex, which includes sexual orientation and gender identity;
• Clarifying that discrimination based on sex includes discrimination based on pregnancy or related conditions, such as “pregnancy termination”;
• Requiring civil rights policies and procedures for entities receiving federal funding to ensure requirements preventing and combating discrimination are operationalized;
• Requiring entities to provide staff training on language assistance services for persons with limited English proficiency (LEP), along with effective communication and reasonable modifications to policies and procedures for people with disabilities;
• Requiring 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 prohibiting discrimination when using clinical algorithms to support decision-making in covered health programs and activities;
• Clarifying that health programs and activities offered via telehealth, which must be accessible to LEP individuals and individuals with disabilities, are subject to nondiscrimination requirements;
• Interpreting Medicare Part B as federal financial assistance; and
• Refining and strengthening how conscience and religious freedom objections are raised.

Significantly, the proposed rule also reiterates protections from discrimination for people seeking reproductive health care services.  Thus, with this proposed rule, HHS is clearly attempting to push back against the increased attacks on women, transgender youth, and the healthcare providers treating them in an attempt to fill various identified gaps in the law to better ensure that people across the country can access healthcare without discrimination.

Healthcare providers should take note of the HHS’ proposed rule, as it will have numerous impacts on the everyday provision of care to the patients they serve and the means by which that care is delivered.