FILE - Health and Human Services Secretary Xavier Becerra speaks during a news conference June 28, 2022, in Washington. (AP Photo/Patrick Semansky, File) Xavier Becerra
FILE - Health and Human Services Secretary Xavier Becerra speaks during a news conference June 28, 2022, in Washington. (AP Photo/Patrick Semansky, File)

Section 1557 of the ACA would prohibit discrimination on the basis of race, color, national origin, sex, age, and disability in certain health programs and activities.

Even though same-sex marriage has been legal nationally since the Supreme Court’s Obergefell v. Hodges case in 2015, some aspects of LGBTQ+ life still aren’t up to par in some areas. One of those is in healthcare.

During Donald Trump’s presidency, the scope and power of the Affordable Care Act (ACA) became limited. According to BrandeisNOW, under Brandeis University’s Office of Communications, the Trump Administration and Congress did five things to weaken the ACA:

  • Eliminated the penalty for failing to purchase health insurance
  • Eliminated federal government subsidies for co-payments, making many premium prices rise
  • Allowed “skinny plans” with high deductibles, but that didn’t cover all required benefits
  • Cut funding for the healthcare.gov website, marketing, and advertising
  • Encouraged states to submit waivers to add work requirements to Medicaid expansion, with an exemption from insurance covering all essential benefits

The changes also lessened some of the nondiscriminatory facets of the plan. The US Department of Health and Human Services (HHS) is currently trying to restore and strengthen civil rights protections for patients and consumers in select department and federally funded health programs. 

Adding some meaningful changes to the Affordable Care Act would help reverse course. Section 1557 of the ACA would prohibit discrimination on the basis of race, color, national origin, sex (including sexual orientation and gender identity), age, and disability in certain health programs and activities, the HHS said in a media release.

“This proposed rule ensures that people nationwide can access health care free from discrimination,” said HHS Secretary Xavier Becerra in a media release. “Standing with communities in need is critical, particularly given increased attacks on women, trans youth, and health care providers. Health care should be a right not dependent on looks, location, love, language, or the type of care someone needs.”

Melanie Fontes Rainer, acting director of the Office for Civil Rights, and Chiquita Brooks-LaSure, Centers for Medicare & Medicaid Services (CMS) administrator, joined Becerra on a call on July 25, where the group discussed the potential changes. 

Accessing Care

Becerra said that while he thought most Americans were familiar with their rights to be free from discrimination, there were still some communities that didn’t have the freedom to exercise their rights to access care.

Including a nondiscriminatory clause into the Affordable Care Act would ensure that everyone gets quality healthcare, and that opportunities to easily get that care are available to them.

“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, so that your decisions are based on what you and your healthcare provider, your physician, or the person you depend on for medical decisions is available to you, so you can access the care that you need,” Becerra said.

The secretary noted that the protections didn’t end with the healthcare marketplace coverage that people could get, nor with the expanded services under Medicaid available as a result of the ACA. 

“And it’s not just some of the services that seniors under Medicare were able to get, like no cost preventative care, that would be covered under [the] Section 1557 anti-discrimination provision,” Becerra said. “It is all the services and programs that we administer at HHS that would have that protection attached to them.”

On top of promoting health equity in the LGBTQ+ community, the nondiscriminatory addition would also ensure that a person with limited English language proficiency would receive the information they needed in a way they could understand.

“Too many Americans have had to struggle to get access to the healthcare that they need. Too many many Americans aren’t sure exactly what coverage they’re entitled to,” Becerra said. “We want to make sure that in no way discrimination against someone — I guess, who they are, what they wish to do, how they look, the language they speak, — is one of the reasons why these Americans are deprived of the care that they deserve.”

What Would Change? 

Sure, it all sounds great in theory. And if the proposed rule passes, positive changes would occur for all people — not just a select few. 

Fontes Rainer explained what benefits are riding on the rule, as it soon heads to a public comment period. She laid out a multi-point plan of what the proposed Section 1557 would mean for the American people.

The Proposed Section 1557 would:

  • Reinstate the scope of the section to cover all HHS health programs and activities
  • Reinstate broad application of the section’s nondiscrimination requirements to health insurance issuers that receive federal financial assistance
  • Align regulatory requirements with federal court opinions to prohibit discrimination on the basis of sex, including sexual orientation and gender identity
  • Ensure entities receiving federal funding had civil rights policies and procedures in place to support compliance with the section, as well as train relevant staff on the policies and procedures
  • Require covered entities to provide a notice of nondiscrimination along with notice of the availability of language assistance services and auxiliary aids and services.
  • Explicitly address procrastination on the discrimination of the use of clinical algorithms, used to support decision making
  • Clarifiy that nondiscrimination requirements are applicable to health programs and activities, including those who offer telehealth services
  • Strengthen the process for raising conscience and religious freedoms objections
  • Apply in Medicare Part B, which would ensure nondiscrimination programs across the department and services

Fontes Rainer further explained a couple of points. On the basis of sex, she noted that the proposed rule extended nondiscrimination based on sex characteristics, including intersex traits and pregnancy or related conditions, including pregnancy termination. When it came to language services, she said that there would be a requirement to have alternative formats for individuals with disabilities who required auxiliary aids and services, as well as services available utilizing at least 15 of the most common languages besides English.

The Future Of Healthcare

While the HHS continues forward in the process, both the statute and the current regulation are in effect. However, Brooks-LaSure expressed her opinion of the potential changes coming to the ACA.

“The steps we are taking today will promote health equity in civil rights for LGBTQ+ individuals, communities of color, women, people with disabilities, [and] persons with limited English proficiency. And we do that also regardless of your age,” Brooks-LaSure said. “This work will help eliminate avoidable differences and health outcomes experienced by those who are historically underserved, and provide the care and support that people need to thrive.”

The HHS secretary also expressed his hopes, given the potential changes.

“We know that in many states, many in the transgender community are feeling like they’re being left out,” Becerra said. “This, I hope will send a signal that if you are seeking healthcare — and you have a right to access that care — we will protect that right against discrimination as you access that care.”

There’s no set timeline on when, or if, the changes could take place. However, Becerra speculated on the record that the proposed changes could go into effect in 2023, if not sooner.