By Sara Heath
- The Department of Health & Human Services and Office for Civil Rights have finalized changes to Section 1557 of the Affordable Care Act protecting civil rights for patients. This move has been met with industry dismay, as clinical leaders assert it will impede patient access to care for members of the LGBTQ community, women, and non-English speaking patients.
The changes, originally proposed in August 2019, have long been the target of industry critique. The final rule has also culminated in nationwide protests asserting the rights of LGTBQ patients.
Under the Obama Administration, HHS used Section 1557 to redefine sex discrimination to clarify both pregnancy termination and gender identity. The 2016 administration defined gender identity as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”
Addressing termination of pregnancy intended to protect women who plan to terminate their pregnancies from being denied care or discriminated against. In other words, it set to define denial of care access for terminating a pregnancy as discrimination based on sex.
Since then, a series of courts have ruled that redefinition as unlawful, the current HHS administration reported. Specifically, courts ruled the redefinition as “contrary to civil rights law,” including the Religious Freedom Restoration Act and the Administrative Procedure Act.
READ MORE: Industry Groups Speak Out Against HHS Nondiscrimination Proposal
This latest rule change represents HHS acting on those court rulings, which the agency said were binding.
“Under the final rule, HHS eliminates certain provisions of the 2016 Rule that exceeded the scope of the authority delegated by Congress in Section 1557,” HHS said in its announcement.
“HHS will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word ‘sex’ as male or female and as determined by biology. The 2016 Rule declined to recognize sexual orientation as a protected category under the ACA, and HHS will leave that judgment undisturbed.”
This change has been met with public and professional outcry, with leading physician groups asserting it will undermine patient access to care for members of the LGBTQ community and for women. Under the law, a physician may deny care to a transgender patient or a patient who is seeking to terminate pregnancy.
According to the American Medical Association, this goes against some of the key principles of medicine.
READ MORE: HHS Non-Discrimination Proposed Rule May Jeopardize Health Equity
“Respect for the diversity of patients is a fundamental value of the medical profession and is reflected in long-standing AMA policy opposing discrimination based on race, gender, sexual orientation, gender identity or a woman's decisions about pregnancy, including termination,” said the newly-minted AMA President Susan R. Bailey, MD.
“The federal government should never make it more difficult for individuals to access health care—during a pandemic or any other time.”
AMA minced no words at the time of the rule’s proposal, too.
“This proposal marks the rare occasion in which a federal agency seeks to remove civil rights protections,” AMA CEO and Executive Vice President James L. Madara in a 2019 letter to HHS. “It legitimizes unequal treatment of patients by not only providers, health care organizations, and insurers, but also by the government itself—and it will harm patients. Such policy should not be permitted by the U.S. government, let alone proposed by it.”
The American Hospital Association likewise spoke out against the rule, reiterating its previous dissent and confirming its commitment to health equity and equitable access to care.
READ MORE: Understanding Health Equity in Value-Based Patient Care
“Hospitals and health systems value every individual we have the privilege of serving, regardless of race, religion, national origin, sexual orientation or gender identity. That is why we urged the administration to not move forward with changes to non-discrimination protections,” President and CEO Rick Pollack said.
“We are deeply disappointed that this rule weakens important protections for patients and could limit coverage. Treating all with dignity and respect will continue to guide us in everything we do.”
HHS did outline areas Section 1557 would still provide civil rights protections. HHS still stands for access to care regardless of race, color, national origin, disability, age, and sex. The HHS finalized rule specified that discrimination based on gender identity or termination of pregnancy did not fit into the parameters of how it defined “sex.”
“HHS respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress,” said Roger Severino, OCR director. “We are unwavering in our commitment to enforcing civil rights in healthcare.”
HHS did say it would still require covered entities to provide physical access to care for individuals with disabilities. Additionally, healthcare providers must still provide access to adequate interpretation and translation technologies for individuals who are hard of hearing or visually impaired.
The rule also continues to call for translation services for non-English speaking patients, including enforcing qualification standards for interpreters.
HHS will continue to push to limit using minors and family members as interpreters during a medical encounter. Family members increase the risk that medical terminology may be misinterpreted or misrepresented to patients, increasing the odds that patients may make a decision based on skewed information. HHS has long advocated that organizations utilize third-party interpreters who meet certain specifications.
However, the final rule is still a hit to non-English speakers, advocates say. The rule eliminates language that requires regulated entities to provide mailed notice to patients in 15 or more languages. Including that printed material amounted to some $2.9 billion in costs, HHS said, which the agency stated is passed onto patients and consumers.
HHS suggested it was not necessary for patients and consumers to bear the cost of providing printed medical material in other languages. The evidence suggesting that these notices are effective is scant, the agency said.
“Now more than ever, Americans do not want billions of dollars in ineffective regulatory burdens raising the costs of their healthcare. We are doing our part to reel in unnecessary costs that add economic burdens to patients, providers, and insurers alike,” concluded Severino.
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