On Monday, July 26, the Department of Health and Human Services announced that it was acting to strength protections against discrimination based on gender, sexual orientation, and gender identity in healthcare delivery, in the wake of the U.S. Supreme Court’s June 24 Dobbs v. Jackson Women’s Health Organization decision overturning Roe v. Wade.
The announcement, posted to HHS’s website on Monday morning, began thus: “Today, the U.S. Department of Health and Human Services (HHS) announced a proposed rule implementing Section 1557 of the Affordable Care Act (ACA)(Section 1557) that prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in certain health programs and activities. This proposed rule restores and strengthens civil rights protections for patients and consumers in certain federally funded health programs and HHS programs after the 2020 version of the rule limited its scope and power to cover fewer programs and services. The proposed rule affirms protections against discrimination on the basis of sex, including sexual orientation and gender identity consistent with the U.S. Supreme Court’s holding in Bostock v. Clayton County, and reiterates protections from discrimination for seeking reproductive health care services. Strengthening this rule is part of the Biden-Harris Administration’s commitment to advancing gender and health equity and civil rights, as laid out in President Biden’s executive orders on Preventing and Combatting Discrimination on the Basis of Gender Identity or Sexual Orientation, Protecting Access to Reproductive Healthcare Services, and Advancing Racial Equity and Support for Underserved Communities.”
“This proposed rule ensures that people nationwide can access health care free from discrimination,” Health and Human Services Secretary Xavier Becerra said in a statement contained in the press release. “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.”
And, elaborating on Secretary Becerra’s statement, Acting HHS Office for Civil Rights (OCR) Director Melanie Fontes Rainer added her statement. “Now more than ever, we must stand up for those around the country whose voices often go unheard, to let them know we stand with them and are working to ensure they can access health care free from discrimination. Today’s proposed rule is a giant step in working to ensure that goal is met,” Fontes Rainer said. “I am proud of our staff who worked on this important rule that strengthens Section 1557 and who work every day to help support these goals. This proposed rule affirms our commitment to uphold the law and protect the civil rights of all people who access or seek access to health programs or activities.”
“Strengthening Section 1557 supports our ongoing efforts to provide high-quality, affordable health care and to drive health equity for all people served by our programs,” Centers for Medicare & Medicaid Services (CMS) Administrator Chiquita Brooks-LaSure said in a statement contained in the announcement. “This work will help eliminate avoidable differences in health outcomes experienced by those who are underserved and provide the care and support that people need to thrive.”
The press release went on to articulate the specific elements involved in the HHS announcement. It said that “The Section 1557 Notice of Proposed Rulemaking (NPRM) seeks to address gaps identified in prior regulations. In order to advance protections under this rule it:
• 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.”
The press release stated that, “While the Department is undertaking this rulemaking, both the statute and the current regulation are in effect. If you believe that you or another party has been discriminated against on the basis of race, color, national origin, sex, age, or disability, visit the OCR complaint portal to file a complaint online.”
The action has taken place in the context of concern among policy leaders that the legal reasoning employed by Supreme Court Justice Samuel Alito might lead to state-level discrimination against lesbian, gay, bisexual and transgender (LGBTQ) individuals in the wake of the Dobbs decision, as Justice Alito wrote in Dobbs that all Supreme Court decisions decided since Roe v. Wade in 1973 that have been based on concepts of privacy or due process under the law were illegitimately decided, and should be considered moot. The text of the decision has led to legislators in some states announcing that they would move against LGBTQ rights in their states, as well as threatening additional legislative action that could be construed as being based on gender in the provision of healthcare services.