HHS Announces Proposed Rule to Strengthen Nondiscrimination in Health Care

The proposed rule affirms protections consistent with President Biden’s executive orders on nondiscrimination based on sexual orientation and gender identity, and on protecting access to reproductive health care.

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,” said Secretary Xavier Becerra. “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.”

“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,” said Acting HHS Office for Civil Rights (OCR) Director Melanie Fontes Rainer.  “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,” said Centers for Medicare & Medicaid Services (CMS) Administrator Chiquita Brooks-LaSure. “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 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.

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.

HHS encourages all stakeholders, including patients and their families, health insurance issuers, health care providers, health care professional associations, consumer advocates, and government entities, to submit comments through regulations.gov.

Public comments on the NPRM are due 60 days after publication of the NPRM in the Federal Register.  The Department will also be conducting a Tribal consultation meeting on August 31, 2022, from 2:00 p.m. to 4:00 p.m. Eastern Daylight Time. To participate, you must register in advance at https://www.zoomgov.com/meeting/register/vJIsfu-rqzksEl2T8gUp_lDrWBqkU0223CY.

The NPRM may be viewed or downloaded at: https://www.federalregister.gov/public-inspection/2022-16217/nondiscrimination-in-health-programs-and-activities.

A fact sheet on the NPRM is available in English and 16 languages at: https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html.