HHS moves towards health care equity, proposes to leave sex discrimination behind

The Department of Health and Human Services (HHS) published a proposed rule to update the agency’s nondiscrimination regulations to prohibit sex discrimination in health programs and activities. The update, under the Patient Protection and Affordable Care Act (ACA), also would impose new requirements for communication with disabled individuals and enhance language assistance for individuals with limited English proficiency. The proposed rule would allow individuals to seek remedies for sex discrimination under ACA Section 1557. HHS is accepting comments on its proposal related to both the breadth of the protections and potential accommodations through November 9, 2015.

Sex discrimination. Current civil rights laws enforced by HHS’s Office for Civil Rights (OCR) bar discrimination based on race, color, national origin, disability, or age. The proposed rule would add sex discrimination and discrimination based on gender identity to that list. The new discrimination prohibitions would apply to any health programs or activities that are administered by or receive funding from HHS. The discrimination prohibitions also would protect individuals enrolled in plans offered by issuers participating in the federal and state-based health insurance marketplaces. Additionally, the proposed rule would expressly bar marketing practices or plan designs that discriminate on the basis of race, color, national origin, sex, age, or disability. Specifically, the proposed rule would disallow an individual’s sex or gender identity from serving as a basis to deny coverage, limit access to facilities, or provide relatively limited care. The prohibitions on gender identity discrimination also would eliminate categorical exclusions on coverage of all care related to gender transition.

Communication. The proposed rule would formally adopt the principle that covered entities must take steps to provide reasonable access for individuals with limited English proficiency (LEP). Under the proposed rule, covered entities would be required to: (1) post a notice of consumer rights providing information about communication assistance; and (2) post taglines in the top 15 languages spoken by individuals with LEP nationally, indicating the availability of such assistance. Covered entities also would be required to take steps to provide effective communication for individuals with disabilities. The additional steps might include the use of a sign language interpreter. Facilities would be required to provide notice regarding the availability of such services.

Comments. HHS is seeking comments on the proposed rule, particularly with respect to its concern that the regulation has the “proper scope and appropriately protects sincerely held religious beliefs to the extent that those beliefs conflict with provisions of the regulation.” As a result, the agency is seeking comments on the possibility of a religious accommodation to balance discrimination in health care with the sincerely held religious beliefs of individuals potentially affected by the regulation.

SOURCE: 80 FR 54172, September 8, 2015.

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