HHS’s Proposed Rule to Strengthen Nondiscrimination in Health Care
The U.S. Department of Health and Human Services (HHS) recently announced a proposed rule that would revise the implementing regulation for Section 1557 of the Affordable Care Act (ACA), strengthening and restoring civil rights protections for patients and consumers in certain federally funded and HHS programs. The 2020 version of the rule limited Section 1557’s scope and power to cover fewer programs and services.
What Will the Proposed Rule Address?
Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age and disability in certain health programs and activities. It is one of the federal government’s most powerful tools to ensure nondiscriminatory access to health care. The proposed rule includes anti-discrimination protections on the basis of 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. Additionally, this rule-making includes proposed revisions to nondiscrimination provisions in Centers for Medicare & Medicaid Services regulations.
The Section 1557 Notice of Proposed Rulemaking seeks to address gaps identified in prior regulations. The proposed rule includes the following to advance protections:
Reinstating the scope of Section 1557 to cover the HHS’s health programs and activities
Clarifying the application of Section 1557 nondiscrimination requirements to health insurance issuers that receive federal financial assistance
Aligning regulatory requirements with federal court opinions to prohibit discrimination on the basis of sex, including sexual orientation and gender identity
Making clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy and related conditions, including pregnancy termination
Ensuring requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures
“This proposed rule ensures that people nationwide can access health care free from discrimination.”
-Secretary Xavier Becerra
Requiring entities to provide staff training on effective communication and the provisions of language assistance services for individuals with limited English proficiency (LEP), as well as to make 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
Prohibiting discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities
Clarifying 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
Interpreting Medicare Part B as federal financial assistance
Refining and strengthening the process for raising conscience and religious freedom objections
What’s Next?
Once the proposed rule is published in the Federal Register, there will be 60 days for public comment. The HHS encourages stakeholders, including patients and families, to comment on the proposed rule. Subsequently, the Office for Civil Rights will review the comments as it drafts a final rule. While the HHS is undertaking rule-making, both the statute and current regulation remain in effect.
We will keep you apprised of any notable updates. For more resources on health care regulations, contact us today.
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