November 27, 2022

The Health and Human Services Department intends to reinstate healthcare nondiscrimination rules that President Donald Trump’s administration tossed out two years ago, Secretary Xavier Becerra said Monday.

HHS has issued a draft regulation that would again ban discrimination based on gender identity and would add new protections, including against discrimination based on sexual orientation.

“We want to make sure that whoever you are, whatever you look like, wherever you live, however you wish to live your life, that you have access to the care that you need,” Becerra said during a call with reporters.

Drawing on provisions from the Affordable Care Act, President Barack Obama’s administration issued the first regulation governing discrimination against people based on gender identity in 2016. Four years later, the Trump administration finalized a rule that removed nondiscrimination protections for transgender people, loosened language accessibility requirements, narrowed the reach of the nondiscrimination requirements and more.

HHS announced its intention to reverse the Trump-era policy on gender identity discrimination last year, following a Supreme Court ruling that barred employers from firing workers for being gay or transgender. The Biden administration has interpreted theat decision to mean that other laws prohibiting sex discrimination should also ban sexual orientation and gender identity discrimination.

The new proposed rule restores the nondiscrimination requirements derived from Section 1557 of the ACA for providers, insurers and other entities that participate in federal healthcare programs. The regulation would also designate Medicare Part B, which covers mostly outpatient services, as federal financial assistance for the first time.

“This is really making sure that the protections that are afforded by 1557 really are applying much more broadly across all of our programs,” Centers for Medicare and Medicaid Services Administrator Chiquita Brooks-LaSure said during the call.

The rule would require providers, payers and other covered groups to notify patients of nondiscrimination policy and that language assistance is available. Organizations subject to the rule would have to provide alternative formats for people with disabilities, offer communications in languages besides English and train employees to provide language assistance services. Nondiscrimination requirements would also apply to telehealth services.

The Trump administration rule scrapped some notification and translation requirements, which it estimated cost the government $39.2 million a year. HHS considered continuing the looser Trump administration language access notification requirements but ultimately decided the benefits outweigh the implementation difficulties.
The new proposal would ban discrimination based on pregnancy or pregnancy termination. The Trump administration allowed healthcare providers and covered entities to invoke religious exemptions from complying with sex nondiscirmination if doing so involved paying for an abortion.

HHS included a provision banning discriminatory clinical algorithms for decision support. Recent research has shown clinical algorithms may further discrimination, and some crisis standards plans that states employed for the COVID-19 pandemic may have screened out people with disabilities, HHS wrote in the draft regulation. If the rule is finalized, providers, insurers and other program participants would have to modify algorithms unless doing so would fundamentally change their activities. Entitites that participate in federeal health programs wouldn’t be liable for clinical algorithms they didn’t develop, but could be responsible for decisions made based on discriminatory algorithms, the proposed rule states.
The rule also offers a new process for raising religious objections to Section 1557 policies. The HHS Office for Civil Rights would determine on a case-by-case basis whether to grant exceptions on conscience or religious grounds.

Both the Obama and Trump administrations’ healthcare nondiscrimination rules are still tied up in litigation, along with the Biden administration’s 2021 notice that it would prohibit sexual orientation and gender identity discrimination. The Biden administration hopes its finalized version of the rule would withstand inevitable legal scrutiny.

“Someone may challenge us and say that we’re not interpreting the law properly. We think we are,” Becerra said.

Entities subject to the rule may incur costs for activities such as training employees, revising policies, issuing notices and expanding coverage. HHS projects that would total more than $1 billion in the first year and $425 million a year following that.

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