On August 3, 2022, President Biden signed an Executive Order directing the Secretary of the US Department of Health and Human Services (HHS) to "consider all appropriate actions to advance the prompt understanding of and compliance with Federal nondiscrimination laws by health care providers that receive Federal financial assistance," including nondiscrimination against persons seeking access to reproductive services. The following day, HHS published in the Federal Register a notice of proposed rulemaking (Proposed Rule) implementing Section 1557 of Title I of the Patient Protection and Affordable Care Act (Section 1557), which prohibits discrimination in certain health-related programs and activities based on race, color, national origin, sex, age, or disability. Among other things, in alignment with the Biden Executive Order, the Proposed Rule would clarify that discrimination "on the basis of sex" includes discrimination based on a patient's pregnancy or related conditions, including with respect to termination of pregnancy. The Proposed Rule also would impose anti-discrimination requirements on providers of telehealth, the use of algorithms to make health care-related decisions, and the offering of medical diagnostic equipment.
HHS is inviting comments on the Proposed Rule, which would apply broadly to federally assisted health insurance programs and health care providers (Covered Entities), until October 3, 2022.
Background
The ACA was enacted in 2010 to make health care more accessible and affordable. Section 1557 seeks to further that goal by prohibiting discrimination based on race, color, national origin, sex, age, or disability in a health program or activity, any part of which is receiving federal financial assistance, any program or activity that is administered by an Executive Agency, or any entity established under Title I of the ACA or its amendments. HHS previously sought to implement Section 1557 through regulations published in 2016 (2016 Rule), but was judicially enjoined from doing so with respect to the 2016 Rule's interpretation that discrimination on the "basis of sex" includes discrimination based on "gender identity" or "termination of pregnancy,"1 including through an order enjoining HHS from interpreting or enforcing Section 1557 in a way that would require the plaintiffs challenging the rule to perform or provide insurance coverage for abortion or gender transition services.2 This decision is currently being appealed.
In 2020, HHS promulgated a new rule (2020 Rule), rescinding significant portions of the 2016 Rule, including the definition of "on the basis of sex." Shortly after HHS published the 2020 Rule, litigants in numerous district courts challenged the 2020...
