HHS codifies non-discrimination rules, focuses on LGBTQ+ protections

The Department of Health and Human Services (HHS) has finalized two rules strengthening section 1557 of the Affordable Care Act (ACA), banning all gender- and sex-based discrimination in healthcare organizations or in any HHS grant program.

The first final rule, unveiled on April 26, protects members of the LGBTQ+ community, the agency said, although 1557 provides non-discrimination protection on the basis of race, color, national origin, sex, age, and disability.

The rule, pertaining to any HHS health programs, also touches on telehealth and artificial intelligence (AI), two burgeoning avenues for healthcare.

“Today’s rule is a giant step forward for this country toward a more equitable and inclusive health care system, and means that Americans across the country now have a clear way to act on their rights against discrimination when they go to the doctor, talk with their health plan, or engage with health programs run by HHS,” HHS Secretary Xavier Becerra said in a press release.

“I am very proud that our Office for Civil Rights is standing up against discrimination, no matter who you are, who you love, your faith or where you live.  Once again, we are reminding Americans we have your back.”

Perhaps most notably, the finalized rules codify protections for LGBTQ+ populations. This follows a rule change under the prior administration requiring a stricter interpretation of sex and gender anti-discrimination.

Melanie Fontes Rainer, director of the Office for Civil Rights (OCR), said the final rule is in direct response to patient feedback.

“Traveling across the country, I have heard too many stories of people facing discrimination in their health care,” Fontes Rainer said in the press release. “The robust protections of 1557 are needed now more than ever. Whether it’s standing up for LGBTQI+ Americans nationwide, making sure that care is more accessible for people with disabilities or immigrant communities, or protecting patients when using AI in health care, OCR protects Americans’ rights.”

But the final rule also establishes a number of other, smaller protections. For the first time, Medicare Part B is included in 1557 protections, HHS said, and the final rule also reiterates the non-discrimination and patient rights requirements to health payers. In particular, the final rule bans discrimination in coverage decisions.

It also requires providers, health insurers, and others to be clear with patients about their rights. For example, it requires entities to proactively tell patients that language assistance is available to them, and likewise for accessibility accommodations. These requirements also apply to care provided via telehealth, HHS said.

“CMS is steadfast in our commitment to providing access to high-quality, affordable health care coverage for millions of people who represent the vibrant diversity that makes America strong,” CMS Administrator Chiquita Brooks-LaSure stated publicly. “Today’s rule is another important step toward our goal of health equity – toward the attainment of the highest level of health for all people, where everyone has a fair and just opportunity to attain their optimal health.”

In a second rule, unveiled just days later on April 30, HHS extended 1557 non-discrimination requirements to HHS grant programs.

The HHS rule applies to any HHS grantee, including those that “provide aid to refugees, early childhood education services, assistance to people experiencing homelessness, substance use disorder (SUD) treatment and prevention, community mental health services, maternal and child health services, and community services,” the agency said in a statement.