HHS Looks to Advance Health Equity Through ACA

Proposed Rule Bans Discrimination in Health Insurance Marketplaces, HHS Health Programs

September 23, 2015 02:05 pm News Staff

Earlier this month, HHS issued a proposed rule titled "Nondiscrimination in Health Programs and Activities"(www.federalregister.gov) that aims to advance health equity and reduce disparities in health care by providing populations vulnerable to discrimination equal access to health care and health care coverage.

[Health Equity signage in front of cloudy blue sky]

Section 1557 of the Patient Protection and Affordable Care Act (ACA) enacted in 2010 extended civil rights protections banning discrimination based on gender to health programs and activities. HHS' Office for Civil Rights (OCR) also has been enforcing civil rights laws by barring discrimination based on race, color, national origin, disability or age.

This proposed rule specifically implements the provisions of that section by extending those protections to the health insurance marketplaces and other HHS health programs and activities and by clarifying the standards HHS applies in implementing Section 1557 across all bases of discrimination, including that based on gender identity.

It also includes requirements for effective communication to individuals with disabilities and enhanced language assistance for people with limited English proficiency.

"This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system," said HHS Secretary Sylvia Burwell in a Sept. 3 news release.(www.hhs.gov) "This is another example of this administration's commitment to giving every American access to the health care they deserve."

Story highlights
  • Earlier this month, HHS issued a proposed rule intended to provide populations vulnerable to discrimination equal access to health care and health care coverage.
  • The proposed rule extends civil rights protections to the health insurance marketplaces and other HHS health programs and activities and clarifies the standards the agency applies in implementing antidiscrimination provisions of the Patient Protection and Affordable Care Act.
  • It also includes requirements for effective communication to individuals with disabilities and enhanced language assistance for people with limited English proficiency.

The OCR already has been accepting civil rights complaints(www.hhs.gov) under the ACA, and the proposed rule makes it clear that individuals can seek legal remedies for discrimination under Section 1557.

In addition to health insurance marketplaces, the proposed rule applies to any health program that HHS administers directly, as well as to any health program, activity or entity that receives HHS funding, such as hospitals that accept Medicare patients or physicians who treat Medicaid patients.

Highlights of the Proposed Rule

The proposed rule implements a number of new protections, including a directive that women and men must be treated equally in the health care they receive. Other provisions of the ACA bar certain types of sex discrimination in insurance by, for example, prohibiting women from being charged more than men for coverage.

The proposal also states that individuals must not be subjected to discrimination based on gender identity. For example, some insurance policies have historically contained categorical exclusions on coverage of all care related to gender transition, but those exclusions would be prohibited under the proposed rule. Individuals also must be treated in a manner consistent with their gender identity, including in access to facilities.

In addition, the rule states that all covered entities need to provide patients who have limited English proficiency tools that allow effective two-way communication of health information, such as written translations, language services or oral interpreters.

For individuals with disabilities, the proposed 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.

Open for Public Comment

HHS has requested comment(www.regulations.gov) on how a final rule can incorporate the most robust set of protections against discrimination that will be supported by the courts on an ongoing basis.

The proposed rule also requests comment on whether Section 1557 should include an exemption for religious organizations and what the scope of any such exemption should be. However, nothing in the proposed rule would affect the application of existing protections for religious beliefs and practices, such as provider conscience laws and the regulations issued under the ACA related to preventive health services.

Comments on the proposed rule will be accepted through Nov. 9, and the OCR will consider these comments as it drafts its final rule to implement Section 1557.

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