HHS Seeks to Broaden the ACA’s Non-Discrimination ProvisionsJuly 26, 2022
WASHINGTON — HHS issued a proposed rule Monday to restore some of the nondiscrimination provisions in the Affordable Care Act (ACA) that had been restricted by the Trump administration.
“Everyone in America should be able to get care they need from any health provider in the country, especially if that provider is receiving funding from HHS,” Xavier Becerra, HHS secretary, said on a phone call with reporters. “We want to make sure Americans are free from discrimination when they try to access the care they need … Too often, there are some communities who don’t have that freedom to exercise their right to access care.”
The proposed rule would revise Section 1557 of the ACA, which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. In June 2020, the Trump administration issued a final rule that removed gender identity and pregnancy termination from the rule’s definition of sex discrimination, saying that it was complying with recent court decisions finding the rule’s provisions in those two areas were “contrary to the applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act.”
“Our position … conforms with the text of the law itself. …We are not issuing an affirmative definition of sex in the regulation,” Roger Severino, then-director of the HHS Office for Civil Rights (OCR), said at the time. “We believe in the inherent human dignity of all people. HHS is here to make sure access to healthcare is available for everyone; it’s part of our mission. … That goal is not changed by this rule — in fact, this rule is in keeping with it.”
However, healthcare provider groups expressed concern with the move by the Trump administration. “Respect for the diversity of patients is a fundamental value of the medical profession and is reflected in long-standing AMA policy opposing discrimination based on race, gender, sexual orientation, gender identity, or a woman’s decisions about pregnancy, including termination,” then-American Medical Association President Susan Bailey, MD, said in a statement the day the final rule was issued. “The federal government should never make it more difficult for individuals to access healthcare — during a pandemic or any other time.”
The Biden administration’s action reverses what the Trump administration did. “We want to make sure that whoever you are, whatever you look like, wherever you live, however you wish to live your life, that you have access to the care that you need, so that your decisions are based on what you and your healthcare provider” decide, Becerra said. The proposed rule also once again applies the nondiscrimination provision to health insurance issuers that receive federal financial assistance — another regulation that had been removed by the Trump administration.
The proposed rule would also expand the affected entities to include Medicare Part B beneficiaries, which has never been done before, said Chiquita Brooks-LaSure, administrator of the Centers for Medicare & Medicaid Services. The rule had previously applied only to certain Medicare services, “and that had the effect of having a disconnect because many of the services that Medicare beneficiaries receive are classified as Part B services,” she said. “So this is really making sure that the protections that are afforded by Section 1557 really are applying much more broadly across all of our programs.”
HHS officials were asked whether the new rule would interfere with the rights of those whose religious beliefs prevented them from providing healthcare services to certain individuals. Becerra responded that the agency “will aggressively protect people’s rights, and that includes religious conscience protections that are in place under the law, so that people can exercise those. That is also part of the work that we do, and we don’t believe that there’s any inconsistency in making sure that people are accessing care without discrimination at the same time we’re making sure that we’re protecting people’s religious freedom … They should work well together.”
“We have a standalone provision on religion and conscience in the rule for the first time, in response to stakeholder feedback,” said Melanie Fontes Rainer, who was introduced on the call as OCR’s acting director. Investigating complaints in this area is a priority for the department, she said.
Although Fontes Rainer was introduced as OCR’s acting director, another person — Lisa Pino — was listed on the HHS website Monday as OCR’s director. An HHS spokesperson later confirmed to MedPage Today that Pino had left the agency, and noted that her impending departure was first reported by Politico on July 12.