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Final Rule Removes Gender Identity, Language Access Protections

On June 12, the Department of Health and Human Services’ (HHS’) Office of Civil Rights (OCR) finalized a rule that overhauls parts of Section 1557 of the Affordable Care Act (ACA) to remove nondiscrimination protections for transgender individuals and certain language access requirements for providing health care services to people with limited English proficiency (LEP).

Specifically, the final rule eliminates certain definitions in the 2016 nondiscrimination rule finalized under the Obama administration. The 2016 final rule imposed several requirements regarding medical treatment and coverage on the basis of gender identity and pregnancy status. The definition of discrimination “on the basis of sex” extended legal protections to individuals facing discrimination based on “sex stereotypes” and “gender identity.” The new final rule removes these protections by returning the meaning of the word “sex” in statute to mean the biological binary categories of male and female only.

HHS also finalized conforming amendments to nondiscrimination provisions within various Centers for Medicare & Medicaid Services regulations to create a more uniform practice concerning nondiscrimination on the basis of sex among HHS programs to which Section 1557 applies.

Under the final rule, covered entities must take reasonable steps to ensure meaningful access for individuals with LEP. The rule adds a four-factor analysis to assess compliance that gives providers flexibility in meeting their obligation to ensure meaningful access for LEP individuals. Further, the rule moves away from requiring video interpreting services, instead applying many of the same standards to audio interpreting services.

Additionally, the final rule eliminates sections of the 2016 rule that require covered entities to send nondiscrimination notices and taglines with all significant communication, in at least the top 15 languages, to patients and customers.

America’s Essential Hospitals is reviewing the final rule, effective 60 days after its June 19 publication in the Federal Register, and will provide a detailed update to members in the coming days.

Contact Senior Director of Policy Erin O’Malley at eomalley@essentialhospitals.org or 202.585.0127 with questions.

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About the Author

Abigail Painchaud is a policy associate at America's Essential Hospitals.

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