Obama administration rewrites Obamacare to include transgender procedures

The Department of Health and Human Services (HHS) issued a proposed rule to advance health equity and reduce disparities in health care.  The proposed rule, Nondiscrimination in Health Programs and Activities, will assist some of the populations that have been most vulnerable to discrimination and will help provide those populations equal access to health care and health coverage.

Section 1557 of the Affordable Care Act (ACA) extended civil rights protections banning sex discrimination to health programs and activities.  Previously, civil rights laws enforced by HHS’s Office for Civil Rights (OCR) barred discrimination based only on race, color, national origin, disability, or age. The proposed rule also extends al l civil rights obligations to the Health Insurance Marketplaces and HHS health programs and activities, and clarifies the standards HHS applies in implementing Section 1557 across all bases of discrimination.

The proposed rule establishes that the prohibition on sex discrimination includes discrimination based on gender identity.  It also includes requirements for effective communication for individuals with disabilities and enhanced language assistance for people with limited English proficiency.

“This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system,” Health and Human Services Secretary Sylvia M. Burwell said. “This is another example of this Administration’s commitment to giving every American access to the health care they deserve.”

While OCR has already been accepting complaints under the ACA, the proposed rule makes clear that individuals can seek legal remedies for discrimination under Section 1557.

Today’s proposed rule applies to Health Insurance Marketplaces, any health program that HHS itself administers, and any health program or activity, any part of which receives funding from HHS, such as hospitals that accept Medicare patients or doctors who treat Medicaid patients.  Finally, the proposed rule extends these nondiscrimination protections to individuals enrolled in plans offered by issuers participating in the Health Insurance Marketplaces and explicitly bars any marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability.  All the plans of insurers participating in the Marketplace are covered by the proposed rule.

The proposed rule makes clear HHS’s commitment, as a matter of policy, to preventing discrimination based on sexual orientation, and requests comment on how a final rule can incorporate the most robust set of protections  against discrimination that are supported by the courts on an ongoing basis.

The proposed rule requests comment on whether Section 1557 should include an exemption for religious organizations and what the scope of any such exemption should be.  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.

The proposed rule includes a number of new protections.

Women must be treated equally with men in the health care they receive.  Other provisions of the ACA bar certain types of sex discrimination in insurance, for example by prohibiting women from being charged more than men for coverage.  Under Section 1557, women are protected from discrimination not only in the health coverage they obtain but in the health services they seek from providers.

Individuals may not be subject to discrimination based on gender identity. For example, some insurance policies have historically contained categorical exclusions on coverage of all care related to gender transition.  Those categorical exclusions are prohibited under the proposed rule.  Individuals must also be treated consistent with their gender identity, including in access to facilities.

The rule bolsters language assistance for people with limited English proficiency, so that individuals are able to communicate more effectively with their health care providers to, for example, describe their symptoms and understand the treatment they have been prescribed.  The proposed rule provides clear guidance on the requirements of the law with regard to provision of language services, such as oral interpreters and written translations.

For individuals with disabilities, the rule contains requirements for the provision of auxiliary aids and services, including alternative formats and sign language interpreters, and the accessibility of programs offered through electronic and information technology.