Today, the Department of Health and Human Services (“HHS”) issued a long-awaited proposed rule implementing Section 1557 of the Affordable Care Act (“ACA”), which makes clear that the ACA’s extension of civil rights protections against sex discrimination in health programs and activities includes discrimination based on sexual orientation and gender identity. Before the ACA, civil rights laws enforced by HHS’s Office for Civil Rights (“OCR”) barred discrimination based only on race, color, national origin, disability, or age.

Section 1557 applies to all health programs and activities, any part of which receives federal financial assistance from any federal agency, including hospitals that accept Medicare patients or doctors who treat Medicaid patients, as well as any health program that HHS itself administers. The proposed rule also covers the Health Insurance Marketplaces and all plans of insurers participating in the Marketplace.

While the proposed rule does not require covered plans to cover any particular benefit or service, “a covered entity cannot have a coverage policy that operates in a discriminatory manner.” For example, “a plan that covers inpatient treatment for eating disorders in men but not women would not be in compliance with the prohibition of discrimination based on sex.” Similarly, “a plan that covers bariatric surgery in adults, but excludes such coverage for adults with particular developmental disabilities would not be in compliance with the prohibition on discrimination based on disability.”

Prohibition on Sex Discrimination Includes Sexual Orientation and Gender Identity:

The proposed rule clarifies that Section 1557’s prohibition on sex discrimination includes discrimination based on sexual orientation and gender identity, the latter of which is defined to include transgender individuals (“an individual has a transgender identity when the individual’s gender identity is different from the sex assigned to that person at birth”). Under the proposed rule:

  • Individuals cannot be denied health care or health coverage based on their sex, which includes their gender identity.
  • Individuals must be treated consistent with their gender identity, including access to facilities.
  • Sex-specific health care cannot be denied or limited just because an individual identifies as belonging to another gender. For example, a provider may not deny an individual treatment for ovarian cancer based on the individual’s identification as a transgender male, if the individual could benefit medically from that treatment.
  • Explicit categorical or automatic exclusions of coverage for health care services related to gender transition “is unlawful on its face” and constitutes “prohibited discrimination on the basis of sex.” The proposed rule states that many health plans, including those under Medicaid, currently contain such categorical exclusions, which traditionally have been justified by calling the procedures cosmetic or experimental. Such justifications are now “outdated and not based on current standards of care.”
  • Other exclusions for gender transition are to be evaluated on a case-by-case basis.

Enhanced Protections for Individuals with Limited English Proficiency and Individuals with Disabilities:

In addition to enhanced protection for transgender individuals, several other new protections are proposed under the rule:

  • People with limited English proficiency must be provided enhanced language assistance so that they are able to communicate more effectively with their health care providers to, for example, describe their symptoms and understand the treatment they have been prescribed.
  • Covered entities are required to post a notice of consumer rights providing information about communication assistance and post taglines in the top 15 languages spoken by individuals with limited English proficiency nationally (Spanish, Chinese, Vietnamese, Korean, Tagalog, Russian, Arabic, French Creole, French, Portuguese, Polish, Japanese, Italian, German, and Persian (Farsi)).
  • Individuals with disabilities must be provided with effective communication tools such as auxiliary aids and services, including alternative formats and sign language interpreters.

Public Comments Requested Regarding Potential Religious Exemptions:

The proposed rule is open for public comment through November 6, 2015. HHS specifically requests comment on “how a final rule can incorporate the most robust set of protections against discrimination that are supported by the courts on an ongoing basis,” as well as “whether Section 1557 should include an exemption for religious organizations and what the scope of any such exemption should be.”

Additional sources of information: