The Department of Health and Human Services' Office for Civil Rights has effectively removed protections against discrimination around gender identify and sex stereotyping in a final rule revising Section 1557 of the Affordable Care Act.
The protections, which have been in place since 2016, were added to the ACA under the Obama administration. They have been the centerpiece of ongoing litigation.
HHS, in a statement, said the final rule "maintains vigorous enforcement of federal civil rights laws on the basis of race, color, national origin, disability, age, and sex, and restores the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress."
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The agency added that the rule would save about $2.9 billion in regulatory burdens over five years. It said the savings come from eliminating the mandate for regulated entities to send patients and customers excessive "notice and taglines" inserts in 15 or more foreign languages in healthcare mailings.
"These expensive notices have not generally proven effective at accomplishing their purpose of providing meaningful language access to healthcare," HHS said.
WHAT'S THE IMPACT
According to Health Affairs, when the rule was in its proposed form, it received comments from lawmakers, state and local governments, tribes, state-based marketplaces and healthcare industry stakeholders totaling close to 200,000. Many claimed the rule exceeded OCR's authority and was inconsistent with the ACA by reducing civil rights protections for vulnerable populations such as the LGBTQ+ population, women, people with disabilities and those with limited English proficiency.
Despite those concerns, the final rule is largely unchanged from the proposed rule. It eliminates: definitions of terms such as "covered entity" and "on the basis of sex"; language access requirements, such as mandated tagline translations on notices and communications; nondiscrimination protections based on sex and gender identity; requirements that covered entities post information about Section 1557 on their websites; and requirements to have a compliance coordinator to handle complaints about alleged violations of the rule.
Regardless, HHS said it will "continue to vigorously enforce federal civil rights laws prohibiting discrimination on the basis of race, color, national origin, disability, age, and sex in healthcare, as Section 1557 provides."
The final rule retains protections for those with disabilities to have physical access to healthcare facilities, communication technology for those who are visually or hearing impaired, and translators and interpreters for non-English-spoeaking individuals.
THE LARGER TREND
Section 1557 has been subject of legal wrangling over the years. The section prohibits covered health programs or activities from discriminating on grounds protected by longstanding federal civil rights statutes, One of those federal statues is Title IX of the Education Amendments of 1972, prohibiting discrimination on the basis of sex in certain federally funded programs.
In 2016, the Obama administration redefined sex discrimination to include termination of pregnancy and gender identity, which it defined as "one's internal sense of gender, which may be male, female, neither, or a combination of male and female."
On December 31, 2016, a federal court preliminarily enjoined, on a nationwide basis, the redefinition of sex discrimination in the 2016 Rule, concluding that the provisions were likely contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. A second federal court agreed. On October 15, 2019, the first federal court issued a final judgment, and vacated and remanded these provisions as unlawful.
HHS used that as a basis for eliminating certain provisions of the 2016 rule.
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