Obamacare Facts

Final Rule Prohibits Discrimination in Health Care

Civil Rights in Healthcare Strengthened, but Rule Stops Short Requiring Health Plans to Pay for Gender Transition.

A final rule from HHS prohibits discrimination based on race, color, national origin, sex (and gender identity), age, or disability.

The ACA had taken a strong step toward equality in healthcare from the outset, but this updated ruling strengthens those rights clarifying the language in the law.

The rule forbids health care providers who take funding from the HHS from denying health care based on gender identity or denying patients treatment for sex-specific ailments like ovarian or prostate cancer simply because an individual identifies as a different sex.

For the transgender community it was only a partial victory as: 1. Health care providers and insurance companies from discriminating against people based on their gender identities. 2. It fell just short of requiring health plans to pay for gender transition (this had been expected since the rule was proposed last year).

“A 2010 national survey found that 19% of trans men and women were refused services because of their gender identity, 28% said they had been harassed in medical settings, and half said they had to teach their health care provider about caring for transgender people. Though the rule will not eliminate all discrimination, it will make it easier for those who feel they have been wronged to file complaints and take legal action.” – TIME

“What the regulations don’t do is require health insurance companies to cover any specific treatments or procedures, including gender confirmation surgery. But the rules mandate that insurers cover a service for a transgender person when they cover it for any other patient. For example, if a policy pays for women to receive hormone therapy during menopause, it also must pay for a transgender person to get the same treatment as part of transition.

Similarly, the regulation requires insurers and health care providers to allow access to medical care irrespective of a transgender person’s identity or gender assigned at birth. For instance, female-to-male transgender individuals can’t be refused a medically necessary pelvic exam.

The regulation does not include a new exemption for religious reasons, but doesn’t undo preexisting exemptions, according to the Department of Health and Human Services.” – HuffPost

Read the HHS ruling here, the full text is copied below for your convenience. See another take on the issue (from last year’s push for this) from USnews.com or see TIME for insight into the finalization of the rule. Or see a complete discussion of the ruling and surrounding rulings from HuffPost.

HHS finalizes rule to improve health equity under the Affordable Care Act

Final rule prohibits discrimination based on race, color, national origin, sex, age or disability; enhances language assistance for individuals with limited English proficiency; and protects individuals with disabilities

The Department of Health and Human Services (HHS) today issued a final rule to advance health equity and reduce health care disparities. Under the rule, individuals are protected from discrimination in health care on the basis of race, color, national origin, age, disability and sex, including discrimination based on pregnancy, gender identity and sex stereotyping. In addition to implementing Section 1557’s prohibition on sex discrimination, the final rule also enhances language assistance for people with limited English proficiency and helps to ensure effective communication for individuals with disabilities. The protections in the final rule and Section 1557 regarding individuals’ rights and the responsibilities of many health insurers, hospitals, and health plans administered by or receiving federal funds from HHS build on existing federal civil rights laws to advance protections for underserved, underinsured, and often excluded populations.

The Nondiscrimination in Health Programs and Activities final rule implements Section 1557 of the Affordable Care Act, which is the first federal civil rights law to broadly prohibit discrimination on the basis of sex in federally funded health programs. Previously, civil rights laws enforced by HHS’s Office for Civil Rights (OCR) broadly barred discrimination based only on race, color, national origin, disability, or age.

“A central goal of the Affordable Care Act is to help all Americans access quality, affordable health care.  Today’s announcement is a key step toward realizing equity within our health care system and reaffirms this Administration’s commitment to giving every American access to the health care they deserve,” said HHS Secretary Sylvia M. Burwell.

The final rule helps consumers who are seeking to understand their rights and clarifies the responsibilities of health care providers and insurers that receive federal funds. The final rule also addresses the responsibilities of issuers that offer plans in the Health Insurance Marketplaces. Among other things, the final rule prohibits marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability. The final rule also prohibits discriminatory practices by health care providers, such as hospitals that accept Medicare or doctors who participate in the Medicaid program.

The final rule prohibits sex discrimination in health care including by:

  • Requiring that 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.
  • Prohibiting denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.

It also includes important protections for individuals with disabilities and enhances language assistance for people with limited English proficiency including by:

  • Requiring covered entities to make electronic information and newly constructed or altered facilities accessible to individuals with disabilities and to provide appropriate auxiliary aids and services for individuals with disabilities.
  • Requiring covered entities to take reasonable steps to provide meaningful access to individuals with limited English proficiency.  Covered entities are also encouraged to develop language access plans.

While the final rule does not resolve whether discrimination on the basis of an individual’s sexual orientation status alone is a form of sex discrimination under Section 1557, the rule makes clear that OCR will evaluate complaints that allege sex discrimination related to an individual’s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under 1557. HHS supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments on this issue.

The final rule states that where application of any requirement of the rule would violate applicable Federal statutes protecting religious freedom and conscience, that application will not be required.

For more information about Section 1557, including factsheets on key provisions and frequently asked questions, visit http://www.hhs.gov/civil-rights/for-individuals/section-1557.

To learn more about non-discrimination and health information privacy laws, your civil rights, and privacy rights in health care and human service settings, and to find information on how to file a complaint, visit us at www.hhs.gov/ocr.