The Public Health Law Watch initiative identifies potential legislative and regulatory changes that have an impact to harm public health but have yet to break into the mainstream conversation, identifies ways to engage on these issues, and provides legal analysis and commentary.

Changes to the Health Care Rights Law: proposed rule factsheet

Changes to the Health Care Rights Law: proposed rule factsheet

Health Care Rights Law: Proposed Rule Factsheet

Background:

  • Section 1557 of the Affordable Care Act (ACA), the Health Care Rights Law (HCRL), prohibits discrimination on the basis of race, color, national origin, sex, age or disability.

  • The rule promulgated by the Obama Administration’s Department of Health and Human Services (“the rule”) defines “sex” to include sex stereotyping, gender identity and whether someone has terminated a pregnancy.

  • The rule applies to all health programs and activities that receive federal financial assistance through U.S. Department of Health and Human Services (HHS)

  • The rule requires that covered entities post a “notice of nondiscrimination” at physical locations, on their websites and in significant publications, giving information on rights under the HCRL, that language assistance is available for free, and how to file a complaint with OCR in the top 15 non-English languages in the entity’s state. 

  • The rule also requires that covered entities include taglines with information on how to get language assistance in the top 15 languages spoken in the state, on “significant” mailings.

The Proposed Rule:

  • The proposed rule would eliminate the previous definition of “on the basis of sex,” so gender identity and pregnancy termination would no longer be covered in the anti-discrimination rule.

  • The proposed rule would also narrow the scope of the entire HCRL, so that it would no longer apply to short-term plans, non-ACA products, or services as a third-party administrator for group health plans.

  • Additionally, the rule would eliminate the requirement that covered entities post a notice of nondiscrimination in different languages, and would eliminate the tagline requirement.

The Effect:

  • Transgender people and people who have terminated a pregnancy would not be protected from discrimination in health care and health insurance.

  • Covered entities would not have to treat individuals consistent with their gender identities; ex. a hospital could assign a transgender woman to a male ward.

  • Insurers would be allowed to categorically exclude health services related to gender transition, or deny claims or impose additional benefit restrictions because someone is transgender or has terminated a pregnancy.

  • The non-discrimination and language requirements would not apply to Medicare Part B (52.1 million people), self-funded group health plans (50 million), the Federal Employees Health Benefits Program (8 million), or short-term plans.

  • Many of the country’s 25 million non-English speaking people would not have adequate access to information on nondiscrimination rules or how to file a complaint with OCR.

You can submit a comment here.

You can find more information on the rule here.

You can find more information on the rule as it relates specifically to trans rights here.

You can find comment templates here and here.

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CALL FOR PAPERS: Northeastern University School of Law - 2020 Health Law Conference

CALL FOR PAPERS: Northeastern University School of Law - 2020 Health Law Conference