HHS finalizes anti-discrimination rule

A newly finalized rule from HHS clarifies that protections against gender discrimination included in the Affordable Care Act (ACA) apply to gender identity, prohibiting providers who receive federal funding from denying coverage or care to transgender individuals.

The regulations also clarify other facets of the ACA’s discrimination provisions, including requirements to make electronic records and newly built facilities accessible to people with disabilities, and mandating “reasonable steps” for covered entities to address the needs of individuals with a limited knowledge of English.

“A central goal of the Affordable Care Act is to help all Americans access quality, affordable health care,” HHS Secretary Sylvia Burwell said in a statement. “Today’s announcement is a key step toward realizing equity within our healthcare system and reaffirms this Administration's commitment to giving every American access to the health care they deserve.”

The rule largely reiterates existing laws on discrimination, but offers examples of potential violations, such as charging a woman more than a man for health coverage.

The focus on gender identity and sex discrimination attracted many comments regarding how it would be applied to religious organizations, but HHS said the feedback of individual commenters led them to leave out a blanket religious exemption.

“Most of the organizations that commented on this issue, including professional medical associations and civil rights organizations, and the overwhelming majority of individual commenters, many of whom identified themselves as religious, opposed any religious exemption on the basis that it would potentially allow for discrimination … for the denial of health services to women,” the rule said.

The rule went on to say no commenters supporting a religious exemption indicated there would be a religious argument for refusing to treat anyone for a medical condition based on a patient’s gender identity or sexual orientation. The concerns, as summarized in the rule, were focused on services like gender transition or abortion, and HHS felt existing laws provided adequate protection.

Part of the rule deals with the ongoing national debate on transgender bathroom policies. The regulation allows transgender people to enter the bathroom that corresponds to their gender identity in facilities covered by HHS rules, mirroring the policy recently announced by the U.S. Department of Education.