HHS announces proposed rule to strengthen civil rights protections in government-funded health programs

The U.S. Department of Health and Human Services this week announced a proposed rule that would restore and strengthen civil rights protections for patients and consumers in certain federally funded health programs. The earlier 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.

“This proposed rule ensures that people nationwide can access health care free from discrimination,” HHS Secretary Xavier Becerra says. “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.”

The Section 1557 Notice of Proposed Rulemaking seeks to address gaps identified in prior regulations. To advance protections, this rule:

• 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 that 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 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 limited English proficiency 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.

Read more: Judge: Employers cannot deny health care coverage for transgender employees 

The department 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.