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June 6, 2019

New HHS Proposed Rule Removes Gender Identity Protections

On May 24, 2019, the US Department of Health and Human Services (HHS) Office for Civil Rights published a proposed rule that would change the non-discrimination provisions of Section 1557 of the Affordable Care Act.

An Obama-era regulation, Section 1557 prohibits discrimination in health care based on race, color, national origin, sex, age, or disability. Originally, Section 1557 interpreted sex discrimination to include gender identity and the termination of pregnancy. A Catholic hospital system and other plaintiffs challenged the HHS’s definition that included gender identity and the termination of pregnancy in Franciscan Alliance, Inc. v. Burwell, resulting in a nationwide injunction being issued in December 2016 that struck down that interpretation. The case is still in the courts, but, in the meantime, the HHS issued a proposed rule that would eliminate those protections.

If enacted, Section 1557 would no longer include protections from discrimination based on sex stereotyping and would not require covered entities to treat individuals consistent with their gender identity––“sex discrimination” would only refer to one’s biological sex. Section 1557 would also not require the performance of an abortion or any public or private entity to provide or pay for any benefit or service related to an abortion. Lastly, the proposed regulation would add a provision permitting health care conscience protections.

The proposed rule would also change current requirements for serving individuals with Limited English Proficiency (LEP). Covered entities would still be required to take reasonable steps to ensure meaningful access to its programs or activities by individuals with LEP. However, to assess compliance with this requirement, the HHS would apply a more flexible standard based on the unique facts of each situation. The proposed rule would also replace the requirements for video interpreting services with audio-based services. The regulation would eliminate the requirement that health care entities distribute non-discrimination notices and “tagline” translation notices in at least 15 languages, as the notices were found to be ineffective and unduly burdensome.

The proposed rule may be read here. Although federal requirements may change as a result of the proposed rule, health care providers are reminded that NY laws protect gender identity under its definition of discrimination, and the new Reproductive Health Act of 2019 includes protection for the termination of pregnancy.

If you have questions regarding the information presented in this blog post, please contact Frances Ciardullo, special counsel, at fciardullo@barclaydamon.com or another member of the firm’s health care team.

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