The U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) has released its long-awaited proposed rule on nondiscrimination under section 1557 of the Affordable Care Act (ACA).  The proposed rule applies to the federally-facilitated and state-based health insurance marketplaces, all health insurance plans participating in the marketplaces, any health program that HHS itself administers, and any health program or activity, any part of which receives funding from HHS, such as hospitals that accept Medicare patients or doctors who treat Medicaid patients.

The proposed rule includes a number of new protections, explicitly adding protections based on sex and clarifying protections related to equal access for individuals with limited English proficiency and individuals with disabilities. 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.
  • The proposed rule establishes that the prohibition on sex discrimination includes discrimination based on gender identity. Individuals may not be subject 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.  Those categorical exclusions are prohibited under the proposed rule.  Individuals must also be treated consistent with their gender identity, including in access to facilities.
  • The proposed rule makes clear HHS’s commitment, as a matter of policy, to preventing discrimination based on sexual orientation, and 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.
  • The rule bolsters language assistance for people with limited English proficiency, so that individuals 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.  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.
  • The proposed rule would require covered entities to inform consumers of the availability of language assistance using “taglines” in the top 15 languages spoken by individuals with limited English proficiency nationally, which are Spanish, Chinese, Vietnamese, Korean, Tagalog, Russian, Arabic, French Creole, French, Portuguese, Polish, Japanese, Italian, German, and Persian (Farsi).
  • 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.

The proposed rule requests comment on whether Section 1557 should include an exemption for religious organizations and what the scope of any such exemption should be.  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.

While the OCR has already been accepting complaints under the ACA, the proposed rule makes clear that individuals can seek legal remedies for discrimination under Section 1557.

Comments on the proposed rule are due on November 9, 2015.  The OCR has published a Frequently Asked Questions and a fact sheet about the proposed rule.

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