CMS has proposed a new rule that would strengthen health care protections for LGBTQ Americans under the Affordable Care Act (ACA), reversing a policy enacted by the Trump administration, HHS Secretary Xavier Becerra announced on Monday.

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Proposed rule details

In 2016, President Barack Obama's administration issued regulation on discrimination against people based on gender identity in Section 1557 of the ACA.

However, in 2020, the Trump administration finalized a rule removing nondiscrimination protections for transgender people and loosening the language of some nondiscrimination rules. For example, the Obama administration's rule included someone's gender identity in the definition of "sex"—the Trump administration's rule removed that language.

Why post-acute providers need to adopt LGBTQ+ inclusivity policies and programs now

The new rule from CMS restores the Obama administration's nondiscrimination rules and adds a ban on discrimination based on pregnancy or pregnancy termination. Previously, the Trump administration had allowed providers to invoke a religious exemption if complying with the nondiscrimination rules involved paying for an abortion.

The proposed rule would apply to health insurance plans that operate through the Obamacare exchanges, Medicaid, or Medicare. CMS' rule will also require all payers, providers, and other covered groups to notify patients of the nondiscrimination policy, provide communications in languages other than English, and train workers to provide language assistance services. The rule also marks the first time Medicare Part B has been designated as federal financial assistance.

The proposed rule also states that providers could be held liable for decisions made by discriminatory clinical algorithms used for decision support. Research has found that some of these algorithms can further discrimination, Modern Healthcare reports, including some crisis standard plans for Covid-19 that may have excluded people with disabilities.

"I think most Americans are familiar with their rights to be free from discrimination—but too often there are some communities who don't have that freedom to exercise their rights to access care," Becerra said. "We want to make sure that whoever you are, whatever you look like, wherever you live, however you wish to live your life, that you have access to the care that you need."

CMS Administrator Chiquita Brooks-LaSure said the proposed rule is "making sure that the protections that are afforded by 1557 really are applying much more broadly across all of our programs."

"To the providers and the people covered by our programs: you are seen, you are valued, and deserve to be respected and valued in the healthcare setting," Brooks-LaSure added. "Today, we are making it clear that we've got your back."

Reaction

The proposed rule is likely to end up in court, said Katie Keith, a health policy expert at Georgetown University Law Center, as were the rules the Obama and Trump administrations issued.

Keith noted opponents of the rule "will try to construe this as very focused on gender-affirming care and abortion, when in reality there are many provisions there," including protections for people with disabilities.

Roger Severino, who led the HHS civil rights office in the Trump administration, said he believed some parts of the proposal were "downright scary" and could be used to punish physicians who refuse to perform certain surgeries because of state or local laws, or because they don't believe the procedures are clinically appropriate.

"If you think they are never clinically appropriate, you're considered a bigot by the government," Severino said.

Meanwhile, Joni Madison, interim president for the Human Rights Campaign, an advocacy group, praised the proposed rule.

"Despite advances in policy during the Obama and Biden administrations, L.G.B.T.Q.+ people continue to face disproportionate challenges when it comes to accessing health care," Madison said. "This rule change would help to close that gap, and it is desperately needed at a time when some states are attacking access to care." (Goldman, Modern Healthcare, 7/25; Diamond/Roubein, Washington Post, 7/25; Gonzalez, Axios, 7/25; Stolberg, New York Times, 7/25; Stein, Bloomberg Law, 7/25; Weixel, The Hill, 7/25)