Biden administration widens ACA's nondiscrimination clause to include abortions, LGBT people

by Reuters
Wednesday, 3 August 2022 08:56 GMT

U.S. President Joe Biden delivers remarks at the White House in Washington, U.S., July 28, 2022. REUTERS/Elizabeth Frantz

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The proposal seeks to revoke Trump administration restrictions on nondiscrimination protections, which restricted the clause to biological sex, as assigned at birth

NEW YORK(Thomson Reuters Regulatory Intelligence) - The Biden administration proposed a new rule last week to interpret the Affordable Care Act’s healthcare nondiscrimination protections on gender more widely, to include LGBT people and to clarify that care related to pregnancies includes abortions. The proposal also, for the first time, seeks to ensure that the protections will be extended to care received via telehealth as well. The proposal seeks to both revoke Trump administration restrictions on nondiscrimination protections, as well as respond to the U.S. Supreme Court’s ruling this year eliminating constitutional protections for abortion rights.

The U.S. Department of Health and Human Services’ (HHS) proposed rule(LINK: here) would prohibit health-care providers and insurers from denying care or discriminating against patients based on sexual orientation, gender identity, pregnancy and abortion. In 2020, President Donald Trump’s administration restricted the scope of the nondiscrimination clause to biological sex, as assigned at birth.

The agency said the proposed requirements would apply to all health insurers that receive federal financial assistance. It also seeks to widen the net of providers that fall in that category by interpreting Medicare Part B as federal assistance. Part B of the federal Medicare program covers most physician services, even that received while in hospital, outpatient therapy and medical equipment providers.

The HHS’ move to expand the scope of Section 1557, the Affordable Care Act’s nondiscrimination provision, comes as several states have enacted laws restricting access to most abortions and transgender care, especially for teenagers.

“Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers,” HHS’ Secretary Xavier Becerra said.

The health agency said the proposed protections for transgender care align with the federal court opinion in Bostock v. Clayton County case that upheld civil rights protections for the LGBT community.

The proposal also seeks to reinstate foreign language assistance requirements for communities with limited English proficiency and will require auxiliary aids and services to ensure “effective communication and reasonable modifications” to policies and procedures for people with disabilities, the HHS said.

The Trump administration had rolled back mandatory ACA protections that provided access to interpretation and translation services for individuals with limited English proficiency, saying it would relieve costs and regulatory burden and reduce confusion.

The proposed rule now requires services to be extended in at least 15 most common languages spoken besides English, the acting Director for the HHS’ Office for Civil Rights, Melanie Rainer, said on a call with reporters.

“This work will help eliminate avoidable differences in health outcomes experienced by those who are underserved and provide the care and support that people need to thrive,” said Chiquita Brooks-LaSure, administrator for the Centers for Medicare & Medicaid Services which runs the federal government’s Medicaid and Medicare program.

(By Antonita Madonna in New York, Regulatory Intelligence)

*To read more by the Thomson Reuters Regulatory Intelligence team click here: bit.ly/TR-RegIntel

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