On July 25, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced a notice of proposed rulemaking and tribal consultation regarding nondiscrimination in federal health programs and activities. The rule is intended to provide greater clarity on statutory interpretations, advance health equity, and reduce disparities in health care.
The rule focuses on implementing nondiscrimination requirements of Section 1557 of the Affordable Care Act (P.L. 111-48 and P.L. 111-152) and follows prior rulemaking on the subject in 2016 and 2020 by previous administrations, both to which the AAMC commented [refer to the AAMC’s comment letter in 2015 and the AAMC’s comment letter in 2019]. Acting HHS OCR Director Melanie Fontes Rainer said the proposed rule “strengthens Section 1557 and ... 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.”
The proposed rule clarifies prohibitions of discrimination on the basis of sex is inclusive of sexual orientation and gender identity, aligning the definition with federal court opinions including the Supreme Court’s 2020 holding in Bostock vs. Clayton County. Additionally, the proposed rule makes clear that “on the basis of sex” also includes discrimination based on pregnancy or related conditions. Intending to best balance civil rights and conscience, the proposed rule provides a clear process for religious and conscience objections.
Notably, the proposed rule expands nondiscrimination provisions to cover Medicare Part B services in addition to Medicaid, the Children’s Health Insurance Program, Programs of All-Inclusive Care for the Elderly, and health insurance offered under the federally facilitated exchanges. It also clarifies the application of nondiscrimination requirements to health insurance issuers that receive federal financial assistance. Additionally, the proposed rule sets nondiscrimination requirements for the use of clinical algorithms to support decision making in covered health programs and activities.
The proposed rule also clarifies that nondiscrimination policies are applicable to telehealth services and requires covered entities to provide notice of nondiscrimination and notice of availability of language assistance services and auxiliary aids and services. If finalized, it would require entities to train staff on the provision of language assistance services and effective communication and reasonable modifications to policies and procedures for people with disabilities.
The agency also released a fact sheet. The proposed rule is scheduled to be published in the Federal Register on August 4. Comments are due 60 days following formal publication.