Antidiscrimination protections removed in Affordable Care Act final rule

The Office of Civil Rights (OCR) in the U.S. Department of Health and Human Services (HHS) recently published a final rule that would significantly roll back antidiscrimination protections in health care that were established in prior rulemaking under the Obama administration. The new rule eliminates nondiscrimination protections for people based on gender identity and pregnancy status. It also removes provisions that required language assistance and information in languages other than English for people with limited English proficiency.

At issue is Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination on the basis of race, color, national origin, age, disability or sex, and applies to “covered entities” (i.e. health care providers and insurers) that receive federal funds. In 2016, the Obama administration published a final rule implementing Section 1557 that said covered entities cannot deny or limit health care services to an individual based on their gender identity—providing first-time protections from discrimination for transgender and nonbinary individuals. The 2016 final rule also prohibited discrimination based on a person having had an abortion. Another important element of the 2016 rule is that it set notice and language access requirements for covered entities. Websites, facilities, and other communications from covered entities had to notify individuals that they do not discriminate and that interpreters and translated documents are available free of charge. These short notices had to be available in the top 15 non-English languages in an entity’s state.

The new final rule from the Trump administration reverses these patient protections. It eliminates the explicit protections for transgender and nonbinary individuals and instead interprets the sex discrimination prohibition in Section 1557 to only apply to the biological sex assigned to a person at birth, and not their gender identity. The new rule also eliminates the protection from discrimination for women who have had an abortion, as well as protections against discrimination based on gender identity or sexual orientation from 10 other HHS regulations, including regulations for the ACA marketplaces and Medicaid managed care. The final rule scales back the notice and language access requirements, and no longer requires covered entities to have a language access plan. Covered entities can also consider cost and other considerations in determining the extent of their available language access services, and can offer audio-only translation services instead of being required to provide audio and video.

The American Kidney Fund (AKF) joined 28 other patient and consumer groups in expressing our opposition to the final rule and its elimination of these important protections. We believe it will result in severe consequences for the health and well-being of Americans seeking health care, especially those with serious, acute, chronic or other pre-existing conditions, and those in vulnerable and under-served communities. For people with pre-existing, chronic conditions, like kidney disease and especially kidney failure, having frequent and nondiscriminatory access to health care can be a matter of life or death.

OCR justifies the changes to the Section 1557 regulation because in their view the 2016 rule exceeded statutory authority; was administratively burdensome, costly, and confusing for covered entities; and incorrectly interpreted civil rights law. OCR also points out that the nondiscrimination changes were needed due to decisions by a Texas district court that froze and then threw out the gender identity and abortion nondiscrimination provisions of the 2016 rule. However, that case is not yet resolved and is now before the Fifth Circuit Court of Appeals. Additionally, other courts have reached opposite conclusions than the Texas district court in similar cases.

On June 15, three days after OCR released its final rule, the Supreme Court issued a decision in a 6-3 ruling that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against lesbian, gay, bisexual, and transgender people, securing protections for the LGBTQIA+ (lesbian, gay, bisexual, transgender/trans, queer/questioning, intersex, asexual and other identities) community. While Section 1557 of the ACA widely applies through a different section of civil rights law, Title IX of the Education Amendment Act of 1972, some legal experts question the validity of OCR’s new final rule on nondiscrimination, given this recent Supreme Court ruling. That’s because courts often look to Title VII when interpreting cases involving Title IX.

A week after the Supreme Court’s decision prohibiting employment discrimination against LGBTQIA+ individuals, a coalition of advocacy organizations filed a lawsuit against the Trump administration. They are asking the U.S. District Court for the District of Columbia to block HHS from implementing its final rule on Section 1557, which is scheduled to go into effect August 18. The plaintiffs argue the rule violates several provisions of the Administrative Procedure Act and conflicts with the Supreme Court’s decision on Title VII.

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About the Author

Mike Ly

Mike Ly is the director of public policy at the American Kidney Fund.

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