HHS Proposes Rules for 1557 Covered Entities to Protect Abortion Rights and Strengthen Protections Against Individuals Based on Sexual Orientation and Gender Identity

By: Andrew Silverio, Esq.

On July 25, 2022, HHS announced a proposed rule that would strengthen the protections granted by Section 1557 of the ACA in various contexts.  In line with the administration’s previous interpretations of the Supreme Court’s holding in Bostock v. Clayton County, HHS reinforces that 1557’s protections against discrimination based on “sex” extend to sexual orientation and gender identity.  The administration’s desire to protect abortion rights is also clear, with HHS stating that 1557’s protections also apply to bar discrimination based on pregnancy and related conditions, which includes “pregnancy termination.” Per the proposed rule:

• Reinstates the scope of Section 1557 to cover HHS’ health programs and activities.
• Clarifies the application of Section 1557 nondiscrimination requirements to health insurance issuers who receive federal financial assistance.
• Aligns regulatory requirements with Federal court opinions to prohibit discrimination on the basis of sex including sexual orientation and gender identity.
• Makes clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination.”
• Ensures requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures.
• Requires entities to give staff training on the provision of language assistance services for individuals with limited English proficiency (LEP), and effective communication and reasonable modifications to policies and procedures for people with disabilities.
• Requires covered entities to provide a notice of nondiscrimination along with a notice of the availability of language assistance services and auxiliary aids and services.
• Explicitly prohibits discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities.
• Clarifies that nondiscrimination requirements applicable to health programs and activities include those services offered via telehealth, which must be accessible to LEP individuals and individuals with disabilities.
• Interprets Medicare Part B as federal financial assistance.
• Refines and strengthens the process for raising conscientious and religious freedom objections.

HHS is currently soliciting public comments, which are due 60 days after the publication of the proposed rule.  The proposed rule itself is available at https://www.hhs.gov/sites/default/files/section-1557-nprm.pdf, with a fact sheet available at https://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html.