Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities. Under the Obama Administration, HHS issued a Final Rule that, in key part, defined “discrimination on the basis of sex” to include sex stereotyping and gender identity, providing new protections for LGBTQ patients. In 2020, under the Trump Administration, HHS issued a new Final Rule removing these protections. Days later, the U.S. Supreme Court issued its decision in Bostock v. Clayton County, Georgia, ruling that sex discrimination under Title VII includes discrimination on the basis of gender identity and sexual orientation. Further rulemaking from HHS is anticipated in 2021. This presentation will provide an overview of the current state of affairs with respect to the scope of the discrimination prohibition, and provide practical compliance tips for health care providers.
Recorded at the Health Law Institute in March 2022.