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HHS Proposes Clarifications to ACA's Antidiscrimination Rules

HHS Proposes Clarifications to ACA's Antidiscrimination Rules

September 8, 2015 — The Obama administration on Thursday released a proposed rule that would bar providers and insurers from discriminating against patients based on sex or gender identity, Reuters reports.

The proposal would apply to providers and insurers who receive funding from HHS, including those that participate in Medicare or Medicaid (Humer, Reuters, 9/4). It is open for public comment through Nov. 6 (Tracer, Bloomberg Business, 9/3).

Proposal Details

The proposed rule would clarify the Affordable Care Act's (PL 111-148) prohibition of discrimination based on sex, extending it to cover gender identity (Alonso-Zaldivar, AP/ABC News, 9/3). Under the rule, health care providers would have to treat patients according to their gender identity, and providers and insurers would not be allowed to restrict or deny health care services based on gender identity (Reuters, 9/3).

According to Jocelyn Samuels, head of HHS' Office for Civil Rights, the rule would not explicitly mandate that insurers cover any specific treatments but would "require that insurers apply non-discriminatory criteria to assessing the services that they will cover" (Bloomberg Business, 9/3). For example, according to Reuters, insurers would not be allowed to have policies that restrict gender transition services that might be offered for other reasons, such as a hysterectomy (Reuters, 9/3).

The rule also would require that providers offer certain communication assistance services to patients who have limited proficiency in English or have disabilities (Radnofsky, Wall Street Journal, 9/3). Further, the rule bars discriminatory advertising in the health insurance marketplaces, as well as health plans that are discriminatory in their benefits (Bloomberg Business, 9/3).

Meanwhile, the proposed rule seeks public comment on whether protections for patients "should include an exemption for religious organizations and what the scope of any such exemption should be."

HHS said, "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" (HHS release, 9/3).