Breaking Down Biden’s New Nondiscrimination Rule
By Katie keith, JD, MPH
August 23, 2022
This week’s contributor is Katie Keith, the director of the Health Policy and the Law Initiative at the O’Neill Institute at the Georgetown University Law Center. She is also an associate research professor at the Center on Health Insurance Reforms and a regular contributor to Health Affairs Forefront. She focuses on providing technical assistance for policymakers and public education on health policy legal issues with an emphasis on access to coverage, affordability, transparency and equity. Katie is a member of the 2022 Tradeoffs Research Council.
The Biden administration is taking a key step they hope will advance equity in health coverage and care.
A new proposed federal rule released earlier this summer focuses on a provision of the Affordable Care Act known as Section 1557. That provision is the law’s primary requirement on nondiscrimination — and what makes the Affordable Care Act a civil rights law.
Under Section 1557, federally funded or managed health care programs and activities – ranging from health insurers to hospitals and clinics that receive Medicare or Medicaid funds to the Indian Health Service – cannot exclude or deny benefits to individuals based on race, color, national origin, age, disability or sex.
In 2016, the Obama administration released a rule making it clear that Section 1557’s protections extended to transgender patients and people seeking abortions, among other policies. In 2020, the Trump administration released its own rule, rolling back many of those protections.
With its new proposed rule, the Biden administration aims to reverse many Trump administration changes, as well as reinstate several Obama-era protections. The proposed rule would, for instance, reapply Section 1557 to many more health insurers and the full range of federal health programs and activities overseen by the Department of Health and Human Services. Insurers and providers would again be explicitly barred from denying or limiting coverage and care based on gender identity.
Other parts of the Biden rule would exceed the scope of the 2016 rule. In a significant change, federal officials would for the first time extend Section 1557 to providers that receive Medicare Part B payments. The proposed rule would also require nondiscrimination in emerging areas, such as in the use of clinical algorithms and the delivery of telehealth services. You can find a summary of more of the policies included in the sweeping proposed rule here.
Even with all the changing interpretations across administrations, Section 1557 has played an important role in reducing discrimination in health care. For example, the Biden administration relied on Section 1557 in recent guidance on access to reproductive health services and gender-affirming care. The new proposed rule suggests federal officials hope to do even more in the future to ensure equal access to care and coverage.
People can comment on the proposed rule until Oct. 3, and federal officials are expected to release a final rule sometime next year. In the meantime, much of the Trump-era rule remains in effect.