The U.S. Department of Health and Human Services (“HHS”) has issued a final rule declaring that individuals are protected from discrimination in health care on the basis of race, color, national origin, age, disability and sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.
In a statement accompanying the Nondiscrimination in Health Programs and Activities final rule, the HHS said that the final rule implements the prohibition on sex discrimination contained in Section 1557 of the Affordable Care Act.
Previously, civil rights laws enforced by HHS's Office for Civil Rights (“OCR”) broadly barred discrimination based only on race, color, national origin, disability, or age.
The HHS added that the “protections in the final rule and Section 1557 regarding individuals' rights and the responsibilities of many health insurers, hospitals, and health plans administered by or receiving federal funds from HHS build on existing federal civil rights laws to advance protections for underserved, underinsured, and often excluded populations.”
Among other things, the final rule prohibits marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability. The final rule also prohibits discriminatory practices by health care providers, such as hospitals that accept Medicare or doctors who participate in the Medicaid program.
The final rule prohibits sex discrimination in health care including by:
- Requiring that women must be treated equally with men in the health care they receive and the health services they seek from providers.
- Prohibiting denial of health care or health coverage based on an individual's sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.
The final rule does not resolve whether discrimination on the basis of an individual's sexual orientation status alone is a form of sex discrimination under Section 1557. The final rule, however, makes clear that the OCR will evaluate complaints that allege sex discrimination related to an individual's sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under Section 1557.
The HHS said that it “supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments on this issue.”
The final rule does not itself include a religious exemption, but it provides that where application of any requirement of the rule would violate applicable federal statutes protecting religious freedom and conscience, that application would not be required.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].