Feds Address Health Care Discrimination

WASHINGTON (CN) - Next week, the Department of Health and Human Services will publish a proposed rule to close loopholes to address disability, gender identity and language barrier discrimination, the federal agency announced Thursday. While the Affordable Care Act (ACA) already contains provisions prohibiting discrimination based on race, color, national origin, sex, age or disability, the proposal aims to clarify the protections to specifically include populations that have continually been subjected to discrimination.

The proposal would prohibit gender identity discrimination as a form of sex discrimination, mandate language assistance for people with limited English proficiency, and require effective means of communication for individuals with disabilities.

The action, if finalized, will apply to any health program or activity that accepts funding from the HHS, such as Medicare or Medicaid, and to the Marketplaces and health plans that are offered as part of the ACA.

The proposed rule would not affect exemptions for religious healthcare organizations already included in the ACA, such as the provider conscience exemption, or provisions related to abortion services or contraception. The proposal requests comments on whether a specific exemption for religious organizations should be included.

Rather than dictating specific treatments, the proposed regulation would provide a basis for patients to seek legal remedies if they have been denied healthcare services, including "transition-related health care like hormone therapy, counseling, and surgical procedures that that have previously been considered aesthetic," Cleis Abeni, of the LGBT-interest group the Advocate, said in a press release. "Transgender health disparities are stark: 28 percent of transgender individuals report harassment when accessing health services; 19 percent report being refused care based on gender identity; and a staggering 50 percent report having to teach their providers how to provide them with adequate care, according to a major report from the National LGBTQ Task Force."

In addition to making it possible for trans men to receive ovarian cancer care, for example, the proposal also focuses on discrimination that happens through a failure of communication for both those with language barriers and those with disabilities.

Covered providers would be required to post a notice of consumer rights, and to post "taglines" in the top 15 languages spoken by those with limited English proficiency, the agency said. The HHS said its Office of Civil Rights will provide a sample notice and translated taglines to reduce the cost burden. "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," the agency said.

Similarly, for those with disabilities, the proposal would require 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," as well as accessible buildings and facilities, unless the provider can demonstrate an undue financial or administrative burden, the agency said.

The proposal also mandates that women be treated equally with men regarding the health care and services they receive, and specifically addresses the issue of women being charged more for their health coverage.

"Discrimination takes many forms and can occur at any step in the health care system, from obtaining insurance coverage to receiving proper diagnosis and treatment. This discrimination has serious adverse impacts on the lives of underserved populations, causing them to pay more for health care and to risk receiving improper diagnoses and less effective treatments. We commend HHS for taking the important step of issuing a proposed rule and urge the administration to move promptly after the end of the comment period to finalize the regulations so as to ensure effective implementation of this crucial new civil rights protection," Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, said in response to the proposal.

The proposal is scheduled to be published Tuesday, Sept. 8, and the agency will accept comments for 60 days after it is published.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit