Protections on the basis of gender identity and sexual orientation would be reinstated in Centers for Medicare & Medicaid Services regulations under a proposed rule announced Monday by U.S. Department of Health and Human Services.
The CMS-related provisions are included as part of a proposed rule, “Nondiscrimination in Health Programs and Activities,” that revises the implementing regulation for Section 1557 of the Affordable Care Act.
“Strengthening Section 1557 supports our ongoing efforts to provide high-quality, affordable health care and to drive health equity for all people served by our programs,” CMS Administrator Chiquita Brooks-LaSure said in a statement. “This work will help eliminate avoidable differences in health outcomes experienced by those who are underserved and provide the care and support that people need to thrive.”
The proposed rule, among other things, according to HHS, reinstates protections on the basis of gender identity and sexual orientation in CMS regulations that were deleted in a 2020 rule. That 2020 rule, HHS said, amended 10 provisions in the CMS regulations, all of which cover at least some entities that also are subject to Section 1557, to delete language that prohibited discrimination on the basis of sexual orientation and gender identity.
“These provisions included regulations governing Medicaid and the Children’s Health Insurance Program (CHIP); Programs of All Inclusive Care for the Elderly (PACE); health insurance issuers and their officials, employees, agents, and representatives; States and the Exchanges carrying out Exchange requirements; agents, brokers, or web-brokers that assist with or facilitate enrollment of qualified individuals, qualified employers, or qualified employees; issuers providing essential health benefits (EHB); and qualified health plan (QHP) issuers,” HHS said.
CMS is proposing to amend those regulations “so that they again identify and recognize discrimination on the basis of sexual orientation and gender identity as prohibited forms of discrimination based on sex,” HHS said. “In addition, CMS proposes to amend its own regulations applying these protections in CHIP to also apply to Medicaid fee-for-service programs and managed care programs. These proposals are consistent with those elsewhere in this proposed rule and would promote consistency across HHS programs by prohibiting discrimination based on sexual orientation or gender identity.”
The changes announced Monday also would interpret Medicare Part B as federal financial assistance.
HHS encourages all stakeholders — specifically mentioning healthcare providers, healthcare professional associations, consumer advocates, beneficiaries and their families, health insurance issuers and government entities — to submit comments on the rule within 60 days after its publication in the Federal Register. Publication is being scheduled.
Comments, identified by RIN Number 0945-AA17, may be submitted electronically through www.regulations.gov, by mail or via hand delivery or courier to the following address: U.S. Department of Health and Human Services, Office for Civil Rights, Attention: 1557 NPRM (RIN 0945-AA17), Hubert H. Humphrey Building, Room 509F, 200 Independence Ave SW., Washington, DC 20201.
The proposed rule is not yet published in the Federal Register, but a PDF has been posted.
HHS has posted a fact sheet and additional information about the proposed rule online.
