HHS Proposes to Reinstate Non-Discrimination Rules

The U.S. Department of Health and Human Services (HHS) announced a proposed rule implementing Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in certain health programs and activities.

The proposed rule reinstates several provisions undone by the Trump administration in a 2020 Rule (see NAHC Report for more information). In that rule several provisions around non-discrimination from a 2016 Rule issued by the Obama administration were rescinded by the Trump administration. The most notable provision rescinded was the definition of “on the basis of sex” along with other significant portions of the 2016 Rule that were considered overly burdensome.

In the proposed rule HHS seeks to address gaps identified in prior regulations in order to advance protections against discrimination in health care programs.

  • 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 proposed rule applies to:

  • Every health program or activity, any part of which receives federal financial assistance,
    directly or indirectly, from the Department;
  • Every health program or activity administered by the Department; and
  • Every program or activity administered by a Title I entity of the ACA

Public comments are due 60 days after publication of the proposed rule in the Federal Register.