Underserved and at-risk populations will gain more equal access to health care and coverage under a new proposal from the Department of Health and Human Services. The Nondiscrimination in Health Programs and Activities rule, which is still under consideration, will help improve health equity and reduce health disparities among some of the most vulnerable populations.
If passed, the rule would strengthen civil rights protections under section 1557 of the Affordable Care Act to include discrimination based on gender identity. It would apply to all HHS health programs and activities, including Health Insurance Marketplaces.
Previously, civil rights laws enforced by HHS barred discrimination based only on race, color, national origin, disability, or age. The sex discrimination ban, known as Section 1557, is the first federal civil rights law to prohibit discrimination on the basis of sex in health care.
The new rule also contains requirements for more effective communication for individuals with disabilities, and enhanced language assistance for people with limited English proficiency. If passed, individuals would be able to seek legal recourse for discrimination.
Any program or activity that receives funding from HHS, including hospitals and providers that accept Medicare or Medicaid patients, would be required to comply. Additionally, these protections explicitly bar any discriminatory marketing practices or benefit designs. All insurance plans in the ACA Marketplace would have to adhere to the new requirements.
Nothing in the proposed rule would affect existing exemptions for religious beliefs and practices, such as provider conscience laws and the regulations issued under the ACA related to preventive health services. You may recall this provision gained notoriety during the Hobby Lobby case, which was ultimately decided in their favor by the Supreme Court.
The proposed rule includes a number of new protections. Among them:
- Women must be treated equally with men in the health care they receive. Other provisions of the ACA bar certain types of sex discrimination in insurance, for example by prohibiting women from being charged more than men for coverage. Under Section 1557, women are protected from discrimination not only in the health coverage they obtain but in the health services they seek from providers.
- Insurance companies cannot exclude coverage of all care related to gender transition, something certain insurers have categorically denied in the past. Individuals must also be treated consistent with their gender identity, including in access to facilities.
- It strengthens language assistance for people with limited English proficiency, so that individuals are able to communicate more effectively with their health care providers — for example, to describe their symptoms and understand the treatment they have been prescribed. The proposed rule provides clear guidance on the requirements of the law with regard to provision of language services, such as oral interpreters and written translations.
- For individuals with disabilities, the rule contains requirements for the provision of auxiliary aids and services, including alternative formats and sign language interpreters, and the accessibility of programs offered through electronic and information technology.
Most media coverage of LGBT issues focus on high profile celebrities like Caitlyn Jenner, and Kentucky clerk Kim Davis’ refusal to issue marriage licenses to same sex couples. Too often, the day-to-day discrimination that many gay, lesbian, and transgender individuals face slides under the radar.
As a society, we should already be past the point where a rule about sex discrimination is even necessary. Until that day arrives, it’s heartening to know that HHS supports individuals who may be denied health care and services simply because of who they are.