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Biden Administration Strengthens Health Care Protections for LGBTQ People

“Today’s rule is a giant step forward for this country toward a more equitable and inclusive health care system.”

On Friday, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services (CMS) issued a final rule under Section 1557 of the Affordable Care Act (ACA) to bolster protections against discrimination in health care.

“Today’s rule is a giant step forward for this country toward a more equitable and inclusive health care system, and means that Americans across the country now have a clear way to act on their rights against discrimination when they go to the doctor, talk with their health plan, or engage with health programs run by HHS,” said Secretary Xavier Becerra in a press release.

This rule reverses Trump-era restrictions that eliminated federal health protections for LGBTQ people, expanding safeguards to prevent potential discrimination against gay and transgender Americans seeking medical care. The rule also aims to reduce barriers to language access, improve physical and digital accessibility, address bias in health technology, and more, by taking decisive action against discrimination based on race, color, national origin, sex, age, and disability.

“CMS is steadfast in our commitment to providing access to high-quality, affordable health care coverage for millions of people who represent the vibrant diversity that makes America strong,” CMS Administrator Chiquita Brooks-LaSure said in a statement. “Today’s rule is another important step toward our goal of health equity — toward the attainment of the highest level of health for all people, where everyone has a fair and just opportunity to attain their optimal health.”

A recent KFF report revealed that LGBTQ adults were twice as likely as non-LGBTQ adults to report negative health care experiences in the past three years. These experiences include feeling unfairly treated or disrespected by a provider, such as a provider assuming something about them without asking, suggesting they were personally responsible for a health problem, ignoring a direct request or question, or refusing to prescribe needed pain medication.

A higher proportion of LGBTQ adults compared to non-LGBTQ adults reported negative health care experiences resulting in worsening health, reduced likelihood of seeking health care, or changing health care providers in the past three years. Six out of 10 LGBTQ adults said they felt they had to prepare for potential insults from health care providers or be conscious about their appearance to ensure fair treatment at least some of the time when seeking care.

By reinstating safeguards implemented during the Obama era for gay and transgender patients, this rule should lead to decreased incidents of discrimination and, therefore, better health outcomes, experts say.

“Section 1557 is critical to making sure that people in all communities have a right to access health care free from discrimination. Today’s rule exemplifies the Biden-Harris Administration’s ongoing commitment to health equity and patient rights,” OCR Director Melanie Fontes Rainer said in a statement. “Traveling across the country, I have heard too many stories of people facing discrimination in their health care. The robust protections of 1557 are needed now more than ever.”

As artificial intelligence (AI) becomes more common in health programs and activities, the rule makes it clear that nondiscrimination policies also cover the use of AI, clinical algorithms, predictive analytics, and other related tools. Therefore, not only does the rule extend nondiscrimination principles under Section 1557 of the ACA to the use of patient care decision support tools in clinical care, it also mandates that entities covered by the rule must proactively identify and address discrimination when employing AI and other decision support tools for patient care.

“Whether it’s standing up for LGBTQI+ Americans nationwide, making sure that care is more accessible for people with disabilities or immigrant communities, or protecting patients when using AI in health care, OCR protects Americans’ rights,” Fontes Rainer said.