ACA Proposed Regulations on Nondiscrimination in Health Programs and Activities

The Department of Health and Human Services (HHS) has issued proposed rules to implement Section 1557 of the ACA, which prohibits discrimination in health care based on race, color, national origin, sex, age, or disability in order to ensure equal access to health care and health coverage. The proposed rules focus on protections against sex discrimination, as the ACA is the first federal civil rights law to prohibit discrimination on the basis of sex in health care.

The proposed rules state that sex discrimination includes discrimination based on gender identity and sexual orientation. Individuals cannot be denied health care or health coverage based on sex, including gender identity, and individuals must be treated consistent with their gender identity, including access to facilities. Sex-specific health care cannot be denied or limited because the person seeking such services identifies as belonging to another gender. Explicit categorical exclusions in coverage for all health care services related to gender transition are facially discriminatory, but other exclusions may be evaluated on a case-by-case basis consistent with the overall policy against sex discrimination.

HHS is currently reviewing public comment regarding how the final rule could best incorporate protections against discrimination based on sexual orientation. HHS is also reviewing public comments regarding whether these rules should include an exemption for religious organizations, and the scope of such an exemption. We will report back when the final rules are published.

For questions about the ACA’s anti-discrimination provisions, please contact your Trust Fund counsel.

By Kristina Zinnen | November 25, 2015

Legal Developments