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HHS Proposes Restoring LGBTQ Health Protections Struck Down by Trump

Analysis  |  By Jay Asser  
   July 28, 2022

The proposed rule will prohibit discrimination on the basis of race, color, national origin, sex, age, and disability in healthcare programs and activities.

The Biden administration is seeking to reinstate nondiscrimination protections for individuals under Section 1557 of the Affordable Care Act, which would strengthen civil rights limited during the Trump era.

HHS announced the proposed rule will prohibit discrimination on the basis of race, color, national origin, sex, age, and disability for certain health programs and activities. It will also interpret Medicare Part B as federal financial assistance for the first time, ensuring the protections are applied more broadly.

The 2020 version of the rule under the Trump administration limited its scope and power and rolled back nondiscrimination protections from the Obama era, specifically on gender identity and the termination of a pregnancy. It received major pushback at the time from individuals and groups, such as the American Hospital Association and the American Medical Association.

The newly proposed rule makes clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including pregnancy termination, HHS stated.

"Everyone in America should be able to get the care that they need from any health provider in the country, especially if that provider is receiving funding from HHS," secretary Xavier Becerra said on a call with reporters.

“We want to make sure that Americans are free from discrimination when they try to access the care that they need."

The proposed rule also addresses requirements for providers and health plans:

  • Clarifies the application of Section 1557 nondiscrimination requirements to health insurance issuers that receive federal financial assistance.
     
  • Requires entities to provide a notice of nondiscrimination along with an notice of the availability of language assistance services and auxiliary ads and services.
     
  • Explicitly prohibits discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities.
     
  • Refines and strengthens the process for raising conscience and religious freedom objections.

Comments on the proposed rule are due 60 days after publication.

Jay Asser is the contributing editor for strategy at HealthLeaders. 


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