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July 28, 2022

HHS Issues Regulation Regarding Non-Discrimination in Health Care

This week, the U.S. Department of Health and Human Services (HHS) issued a proposed regulation that reverses a Trump Administration policy regarding discrimination in health care. Specifically, the reg proposes to modify previously altered non-discrimination protections from 2020 that had removed references to sexual orientation and gender identity and to institute additional protections and clarifications to HHS’ anti-discrimination policies.

As background, Section 1557 of the Affordable Care Act (ACA) prohibits discrimination on the basis of race, color, national origin, sex, age, or disability under any health program or activity that receives federal financial assistance. In 2016, HHS finalized a regulation that defined “on the basis of sex” to include sex stereotyping, gender identity, and termination of pregnancy. However, in 2020 under the Trump Administration, HHS removed gender identity and sexual orientation from the Section 1557 regulation. Simply put, the 2020 reg made it so that LGBTQ+ individuals were no longer protected under this provision.

According to HHS, there are currently five pending lawsuits against the 2020 reg and it is now not being enforced. In addition, in other regulations and announcements, HHS has made it clear that it plans on reversing the policy and reverting back to the 2016 definition of “on the basis of sex.” However, this proposed reg makes it official.

Besides adding sexual orientation and gender identity back to the definition of “on the basis of sex,” the reg also includes a number of other provisions, including:

  • Clarifying that health plans that receive federal funding must adhere to the revised Section 1557 nondiscrimination requirements and stating that the revised requirements also apply to programs that the Centers for Medicare & Medicaid Services (CMS) oversees, including Medicaid, the Children’s Health Insurance Program (CHIP), Programs of All-Inclusive Care for the Elderly (PACE), and the ACA Exchange;
  • Applying the revised Section 1557 nondiscrimination requirements to Medicare Part B (which governs physician and other outpatient payments);
  • Requiring entities that receive federal funding to have civil rights policies and procedures in place that prevent and combat discrimination;
  • Clarifying that the protections apply to individuals with disabilities and limited English proficiency (LEP) and requiring staff training to reinforce that; and
  • Refining the process for raising conscience and religious freedom objections.

HHS also states in the reg that it “believes it could be beneficial to include a provision specifically prohibiting discrimination on the basis of pregnancy-related conditions as a form of sex-based discrimination.” HHS therefore is seeking comment on whether and how the Department should do so and “what impact, if any, the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization has on the implementation of Section 1557…”

ACEP is currently reviewing the reg and plans to submit comments. When the 2020 reg was first proposed in 2019, ACEP and the Emergency Medicine Residents’ Association (EMRA) issued a statement opposing it. ACEP stated that we strongly believe that discrimination in any form should be prohibited in health care. Both by law and by oath, emergency physicians must care for all patients seeking emergency medical treatment. Denial of emergency care or delay in providing emergency services on the basis of race, religion, sexual orientation, gender identity, ethnic background, social status, type of illness, or ability to pay is unethical under the Code of Ethics as emergency physicians.

We also expressed concerns in our official response to the 2020 reg that the modifications HHS were planning to make represented a direct conflict to the federally mandated provision of emergency services. As you all well know, the Emergency Medical Treatment and Labor Act (EMTALA) requires clinicians to screen and stabilize every patient who presents to the emergency department (ED). Such patients have every right to expect the best possible care and to receive the most appropriate treatment and information about their condition. Patients with life-threatening injuries or illnesses may not have time to wait for a referral to another physician or other healthcare professional to treat them if the present provider has a moral or religious objection. Likewise, EDs operate on tight budgets and do not have the capacity to staff additional personnel 24 hours a day, seven days a week, in the event that the available clinician had these objections. The 2020 modifications seem to have demanded that, to meet EMTALA requirements, an ED must anticipate treating LGBTQ+ patients, survey its employees to ascertain who might object to treating such a patient, and staff accordingly. This is an impossible task that we believed would have jeopardized the ability to provide care both for standard ED readiness and for emergency preparedness. In all, we believed that the approach taken in the 2020 reg undermined the critical role that EDs play across the country and jeopardized access to care for specific populations.

Comments on this proposed reg are due at the end of September or early October (exact date pending), and like the 2020 reg, it most likely will wind up in court. I will keep you updated on the status of reg and what legal challenges, if any, it faces.

Before concluding, I have a scheduling announcement. There will be no Regs and Eggs the next few weeks, and the next post will be on Thursday, August 18.

Until then, this is Jeffrey saying, enjoying reading regs with your eggs!

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