HHS’S New Anti-Discrimination Regulation Proposal Explained – Part 2

By Keith C. Dennen

This is the second part in a two-part series about the HHS’s proposed anti-discrimination regulations

Gender Identity.

Another area addressed in the regulations is “gender identity,” which refers to an individual’s “internal sense of gender, which may be different from that individual’s sex assigned at birth.” The proposed regulations seek to prohibit providers from discriminating against, for example, an individual who is female but prefers to be treated as a male, and vice versa. This, of course, includes transgender people. The agency reasons that this is prohibited under sex discrimination laws, and such discrimination would expose the provider to liability.

Sex Stereotyping.

“Sex stereotyping” involves notions like hairstyle, voice, mannerisms or body characteristics that are stereotypically associated with one gender but not the other. In 1989 the U.S. Supreme Court ruled in Price Waterhouse v. Hopkins that Title VII bars employment discrimination against a person because he or she doesn’t act like his sex “should act.” This rule would apply the same standard to providing medical care.

Association Discrimination.

“Association discrimination” originated in the Americans with Disabilities Act. It occurs when a person is discriminated against because of the person’s association with a disabled person, e.g., an employer refuses to hire a mother because she has a child with special needs. In the regulations, the agency extends “Association discrimination” to association (e.g., friendship, relationship) with any member of a protected class.

What about same-sex discrimination? Interestingly, HHS doesn’t include discrimination on the basis of a person’s sexual orientation in its definition of sex discrimination. In the commentary the agency wrote that it supports the prohibition of sexual orientation discrimination, but acknowledged that no federal appellate court has concluded that Title IX’s prohibition on discrimination based upon sex applies to discrimination based on sexual orientation. The commentary noted, however, that some district courts “have reached the opposite conclusion.” The agency requests comments on whether to extend discrimination based upon sex to include sexual orientation.

Grievance Procedures and Electronic Information Requirements

The proposed regulations would also require all physicians and other providers to take certain administrative steps, including:

  • Periodically certifying compliance with the ACA and its regulations;
  • Designating at least one employee as a compliance coordinator;
  • Adopting grievance procedures that incorporate “appropriate due process standards,” and;
  • Providing “prompt and equitable” resolution to grievances.

In the commentary, HHS stated that it realizes the potential burden these requirements may impose, and included an exception for instances when compliance results in undue financial burden, administrative burden, or a fundamental alteration of the health program or activity. In such instances, the provider is required to provide information in a format that would ensure, to the maximum extent possible, that disabled patients receive the same information.

Comment Period

HHS is required by federal law to provide the public the opportunity to comment on the proposed regulations. This comment period is a great opportunity for providers to offer their opinion on the regulations and offer some suggestions to the agency, particularly on the practical administration and implementation of compliance programs. The comment period ends on November 9, 2015.