HHS ANNOUNCES CHANGES IN IMPLEMENTING ANTI-DISCRIMINATION RULE

HHS Announces Changes in Implementing Anti-Discrimination Rule

HHS Published a Notice Enforcing Section 1557’s Prohibition on Discrimination…
The Department of Health and Human Services (HHS) published a notice stating that consistent with the Supreme Court’s decision in Bostock v. Clayton County¹, and Title IX², beginning May 10, 2021, HHS will interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include:

• (1) Discrimination on the basis of sexual orientation; and
• (2) Discrimination on the basis of gender identity.

The notice also states that in enforcing Section 1557, as stated above, the Office of Civil Rights will comply with the Religious Freedom Restoration Act³, and all other legal requirements. Additionally, OCR will comply with any applicable court orders that have been issued in litigation involving Section 1557 regulations. Click here to view.

Click here to view the full notice.

The U.S. Department of Health and Human Services (HHS) is changing how it implements Section 1557 of the Affordable Care Act (ACA). The federal final rule applies to health plans, insurers, hospitals, doctors, and other medical providers that receive HHS funding.

Effective Aug. 18, 2020, changes to the 2016 version of the Section 1557 rule are:

• Elimination of the requirement to issue anti-discrimination notices and taglines on all significant documents;
• Elimination of the requirement to designate a responsible employee and grievance procedures; and
• No longer prohibiting the exclusion of coverage of certain gender transition services in group health benefit plans

Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.

Eliminating Anti-discrimination Notices and Taglines on all Significant Communications
A new rule eliminates a 2016 mandate that required covered entities to distribute non-discrimination notices and “taglines” translation notices in at least 15 languages in all “significant communications” to patients and customers. The regulations of the underlying statutes referred to in Section 1557 (Title VI, Section 504, Title IX, and the Age Act) have long mandated that covered entities provide a notice of nondiscrimination. This final rule maintains that requirement.

Moreover, it continues to require covered entities to provide taglines whenever such taglines are necessary to ensure meaningful access by LEP individuals to a covered program or activity. It removes only the requirement that all significant communications contain taglines.

Trustmark Health Benefits will continue to include taglines in our Section 1557 clients’ Plan documents. We will be removing taglines in explanations of benefits (EOBs) and other communications.

No Longer Prohibiting Excluding Coverage of Gender Transition Services
HHS noted that the final rule makes no changes to what has been the status quo since December 2016, when the Department was enjoined from enforcing gender identity provisions of the 2016 Rule; such provisions have since been vacated by a court.

For purposes of enforcing Section 1557, HHS will return to the federal government’s longstanding interpretation of the word “sex” in the statute. The Section 1557 statute does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity or define “discrimination on the basis of sex” to include such categories.

Recent SCOTUS Ruling Regarding LGBT Employees
The following ruling applies to Title VII employers (employers with 15 or more employees, but excluding the U.S. (and its wholly owned corporations), Indian tribes, D.C. and private membership clubs):

Shortly after the publication of the new Section 1557 rule, the U.S. Supreme Court issued its ruling in BOSTOCK v. CLAYTON COUNTY, GEORGIA on June 15, 2020, and held that an employer that fires an individual merely for being gay or transgender violates Title VII.

In light of this ruling, Trustmark Health Benefits does not support including exclusions for services, supplies, or treatment for gender transition, transsexualism, gender dysphoria, or sexual reassignment in any health benefit plan, regardless of Section 1557 applicability.

Trustmark also suggests that employers consult with their employee benefits attorney regarding any such exclusions in their group health benefit plans.

¹140 S. Ct. 1731 (2020).
²20 U.S.C. 1681 et seq.
³42 U.S.C. 2000bb et seq.