On Wednesday, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services (CMS) issued a final rule under Section 1557 of the Affordable Care Act (ACA) advancing protections against discrimination in healthcare.
The updated rule does not force medical professionals to provide certain types of healthcare, but it does enshrine nondiscrimination protections so that providers cannot turn away patients based on individual characteristics such as being lesbian, gay, bisexual, transgender, queer, intersex, or pregnant.
The rule “reverses a Trump-era regulation and restores gender identity and sexual orientation discrimination protections under Section 1557 of the Affordable Care Act,” Bloomberg Law reported. The regulation now protects people against discrimination by codifying that Section 1557’s prohibition against discrimination based on sex includes LGTBQI+ patients.
More than 20 states have limited or banned gender-affirming care for children and over a dozen states are facing lawsuits over their youth gender affirming care policies, according to KFF.
OCR Director Melanie Fontes Rainer,
The robust protections of 1557 are needed now more than ever. Whether it’s standing up for LGBTQI+ Americans nationwide, making sure that care is more accessible for people with disabilities or immigrant communities, or protecting patients when using AI in health care, OCR protects Americans’ rights.
The rule also applies to AI and telehealth when used to provide healthcare under the ACA and to health insurers who cannot deny, cancel, limit or refuse to issue or renew health coverage based on protected traits.
The rule sets forth a more precise term “patient care decision support tool” to replace the term “clinical algorithm.” to describe various tools used to guide healthcare decision-making that affect the care that patients receive. The agency defines “patient care decision support tool” to mean “any automated or non-automated tool, mechanism, method, technology, or combination thereof used by a covered entity to support clinical decision-making in its health programs or activities.”
The agency’s definition applies to tools that are used by a covered entity in its clinical decision-making that affect the patient care that individuals receive confirming that these support tools include both automated decision systems and AI used to support clinical decision-making.
According to Fierce Healthcare, the revised regulations also bans discrimination in telehealth services. It extensively addresses the accessibility of telehealth for individuals with disabilities or limited English proficiency (LEP). OCR will not mandate that telehealth platforms comply with accessibility standards, despite suggestions from certain commenters.
HHS provided the following highlights of the rule:
- Holds HHS’ health programs and activities to the same nondiscrimination standards as recipients of Federal financial assistance.
- For the first time, the Department will consider Medicare Part B payments as a form of Federal financial assistance for purposes of triggering civil rights laws enforced by the Department, ensuring that health care providers and suppliers receiving Part B funds are prohibited from discriminating on the basis of race, color, national origin, age, sex and disability.
- Requires covered health care providers, insurers, grantees, and others, to proactively let people know that language assistance services are available at no cost to patients.
- Requires covered health care providers, insurers, grantees, and others to let people know that accessibility services are available to patients at no cost.
- Clarifies that covered health programs and activities offered via telehealth must also be accessible to individuals with limited English proficiency, and individuals with disabilities.
- Protects against discrimination by codifying that Section 1557’s prohibition against discrimination based on sex includes LGTBQI+ patients.
- Respects federal protections for religious freedom and conscience and makes clear that recipients may simply rely on those protections or seek assurance of them from HHS.
- Respects the clinical judgement of health care providers.
- Protects patients from discriminatory health insurance benefit designs made by insurers.
- Clarifies the application of Section 1557 nondiscrimination requirements to health insurance plans
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