On May 25, 2019, the Department of Health and Human Services (HHS) released a proposed rule to revise regulations implementing and enforcing Section 1557 of the Affordable Care Act (ACA)—the ACA’s civil rights provision that prohibits discrimination in certain health programs or activities on the basis of race, color, national origin, sex, age, or disability.
Under Section 1557, Congress prohibits discrimination by referencing existing federal civil rights laws, including Title IX of the Education Amendments of 1972. Despite Title IX’s longstanding definition of “sex” as biological sex, HHS under the Obama Administration issued regulations in 2016 redefining discrimination “on the basis of sex” to include “gender identity” and “termination of pregnancy.”
The 2016 regulation’s redefinition of “sex” was preliminarily enjoined nationwide by a federal district court judge. Since then, HHS under the Trump Administration has returned to its longstanding position that the term “sex” refers solely to biological sex. As such, HHS is proposing to revise the 2016 regulation’s provisions that are preliminarily enjoined to better comply with the mandates of Congress and address the legal concerns raised by the courts.
Under the proposed rule, HHS would continue to vigorously enforce civil rights in healthcare, but add explicit regulatory language that Section 1557 shall be enforced consistent with the ACA’s healthcare conscience protections (Sections 1303 and 1553, concerning abortion and legalized suicide, respectively) and existing constitutional provisions and federal laws that protect religious freedom and conscience rights, such as the First Amendment to the Constitution, the Religious Freedom Restoration Act, the Church Amendments, the Coats-Snowe Amendment, the Weldon Amendment, the Hyde Amendment, and the Helms Amendment.
HHS proposes to revise the scope of its enforcement of Section 1557. The 2016 regulation interpreted Section 1557 as applying to all operations of an entity, even if it was not principally engaged in healthcare, while the proposed rule would interpret Section 1557 as applying to the healthcare activities of entities not principally engaged in healthcare only to the extent that they receive funding from HHS.
HHS also proposes to remove the 2016 regulation’s requirement that health companies distribute non-discrimination notices and “tagline” translation notices in at least 15 languages in “significant communications” to patients and customers. Despite the billions of notices sent by mail each year, HHS explains the data does not show that language access has meaningfully increased since 2016 and eliminating the requirement would save $3.6 Billion over a 5-year period.
The Notice of Proposed Rulemaking (NPRM) was published in the Federal Register on May 14, 2019. Comments to the NPRM are due by August 13, 2019, and can be submitted at www.regulations.gov, search for RIN number 0945-AA11.
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Rachel Morrison serves as Litigation Counsel for Americans United for Life and is a member of the Federalist Society’s Religious Liberties Practice Group Executive Committee.