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Proposed Rule to Reinstate Health Care Protections for LGBTQ Workers and Other Groups

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. 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 OrientationProtecting Access to Reproductive Healthcare Services, and Advancing Racial Equity and Support for Underserved Communities.

The proposed rule, specifically, seeks to address the following:

  • Reinstating the scope of Section 1557 to cover HHS’ health programs and activities.
  • Clarifying the application of Section 1557 non-discrimination requirements to health insurance issuers that receive federal financial assistance.
  • Aligning regulatory requirements with federal court opinions to prohibit discrimination on the basis of sex including sexual orientation and gender identity.
  • Making clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination.”
  • Ensuring requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures.
  • Requiring 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.
  • Requiring covered entities to provide a notice of non-discrimination along with a notice of the availability of language assistance services and auxiliary aids and services.
  • Explicitly prohibiting discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities.
  • Clarifying that non-discrimination requirements applicable to health programs and activities include those services offered via telehealth, which must be accessible to LEP individuals and individuals with disabilities.
  • Interpreting Medicare Part B as federal financial assistance.
  • Refining and strengthening the process for raising conscience and religious freedom objections.

A fact sheet on the proposed rule is available here.

Next Steps for Employers

While the HHS is undertaking this rulemaking, both the statute and the current regulation are in effect. HHS is currently seeking comments from interested parties on the proposed rule and is encouraging 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 Public comments on the Notice of Proposed Rulemaking (NPRM) are due by October 3, 2022, and may be submitted using the “Submit a Formal Comment” button on the Federal Register’s webpage by clicking here.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.