Overview of the Policy under Analysis
Policy Number and Title
Section 1557 of the Patient Protection and Affordable Care Act (ACA). The Office for Civil Rights enforces Section 1557 of the Affordable Care Act, thus prohibiting discrimination on the grounds of race, national origin, age, disability, and sex, which includes gender identity, sexual orientation, as well as pregnancy. The banning of discriminatory practices is applicable to all ACA-covered activities and programs focusing on population health.
Purpose of the Policy
The purpose of the policy was to establish a framework of equality of access to healthcare services among the diverse population of the United States. It explicitly prohibits any type of discrimination in the use of clinical algorithms to influence the decision-making of providers dealing with the ACA-covered programs and activities (Rosenbaum, 2016). Section 1557 of the ACA authorized the Secretary of the Department to promulgate regulations for implementing the non-discrimination requirements of the Section.
Context of the Policy
The Department of Health and Human Services (HHS) finalized the revised regulations of the ACA, thus implementing 1557 into practice. The final rule, which was made under the Trump Administration, is considered a significant departure from the regulations established by the Obama Administration (Musumeci et al., 2020). Due to some of the controversy associated with the latest ruling on the policy, in 2022, updates were proposed, especially in terms of reversing the eliminated explicit non-discriminatory protections for LGBTQ individuals. The HHS aims to revisit the 2020 rule made by the Trump administration and the strained reading of Section 1557 to align with the recent developments in the civil rights law and avoid unnecessary confusion.
Historical Background of the Policy
Historical Problems Leading to Policy Creation
Among the crucial historical issues leading to the creation of the policy initially was the fact that the existing health care provisions did not align with the existing civil rights laws. Besides, the laws themselves were generally interpreted as falling short of reaching health insurance coverage itself. With the passing of Section 1557, the matter of health equality was taken further, thus reaching the entire health insurance market, which has never been possible before (Wang et al., 2017). Therefore, the terms of Section 1557 of the ACA suggest that landmark federal civil rights were allowed to permeate the entire US health insurance system.
Importance of Problems
The passing of the Section 1557 was important because it banned insurers from denying, canceling, or refusing the issuing or renewing of plans on the grounds of race, color, national origin, sex, or disability, which had been previously possible. When individuals from diverse backgrounds are denied access to health insurance, they are at risk of developing more severe health conditions in the absence of preventive care. Restricted access to health insurance on the basis of discrimination results in persistent public health issues, especially concerning problems such as HIV/AIDs, hormonal therapy, pregnancy, and many other challenges.
Previous Approach to Handling
Previous to the passing of Section 1557 of the ACA, there was extensive room for widespread discrimination against transgender individuals as well as racial minorities. Since the rule’s coverage of sexual orientation-related discrimination was less explicit and robust, it allowed for providing protection for LGBTQ communities who previously experienced discrimination and healthcare. The possibility for providers and insurers to discriminate against the group resulted in barriers to accessing both emergency and preventative health care, leading to health disparities and a significant public health burden within the LGBTQ community. Section 1557 is particularly important for the current social context in the country as more states began proposing and passing discriminatory legislation that condoned the exclusion of sexual and gender minorities within the healthcare context.
For example, as of August 2016, before the passing of the provision, only seventeen US states and the District of Columbia had guidance prohibiting insurers from discriminating against transgender individuals (Wang et al., 2017). However, with the new rule of the 1557 Section, insurance plans across the whole country could no longer deny access to medically necessary treatments and medications, as well as transition-related interventions.
Values Influencing the Approach
The values of equality and diversity in health and social care apply to Section 1557 of the ACA. Equality is concerned with making sure that any service user can access the same opportunities despite their background, ability, and lifestyle. Diversity is concerned with showing respect for personal values, beliefs, and cultures and appreciating the differences that exist. Every individual should have the right to access the support and care they need regardless of their circumstances and individual characteristics. Health providers and social workers are responsible for promoting diversity and equality in all areas of their practice, thus offering services that are fair, individual-oriented, and diverse.
Historical Background of the Policy
The historical background of Section 1557 is associated with the passing of the Affordable Care Act (Obamacare) in 2010. The law had three key goals, such as making affordable health care insurance available to more citizens, expanding the Medicaid program, and supporting innovative medical care delivery methods intended to reduce the costs of care in general. The legislation marks a turn in the improvement of insurance access and coverage while including important provisions for reducing care costs and improving the quality of care provided to the population. Section 1557 is an expansion of the ACA focusing on the issue of exclusion and discrimination of some individuals by insurers and healthcare providers that was possible under the Act and remained unaddressed (Rosenbaum, 2016). Thus, while the initial version of ACA ensured that there would be no discrimination against individuals with pre-existing conditions in health coverage, Section 1557 provided additional guidance in prohibiting discrimination based not only on health status but also on other demographic characteristics.
Time of Originating
Initially, Section 1557 of the Affordable Care Act was issued in May 2016, extending the principle of non-discrimination in the context of health coverage standards. However, at the same time, it is challenging to insure all residents within the world’s most expensive health care system (Rapfogel, Gee & Calsyn, 2020). For Obama’s Administration, the year 2016 marked the expansion of social policies catering to citizens demanding respect for their dignity regardless of race, gender, religion, sexual orientation, or disability. Besides, in 2016, the Black Lives Movement was getting more popularized in light of the National Anthem Protests aimed at shedding light on racial discrimination in the country (Dunivin et al., 2022). Therefore, the healthcare legislation aimed to meet the sociopolitical context of that time by addressing the concerns of the larger public pool.
Changes in Policy over Time
Since the passing of Section 1557 in 2016 under the Obama Administration, the successors in the government initiated and passed some changes in the policy. Specifically, in 2020, the Trump Administration removed the non-discrimination protections on the basis of gender identity and specific health insurance coverage for transgender individuals (Musumeci et al., 2020). Besides, blanket abortion and religious freedom exemptions for healthcare providers were adopted while protections for individuals with limited English proficiency were reduced. In the final rule, HHS eliminated the Section’s regulatory definition of sex discrimination as defined by the 2016 rule and includes gender identity and sexual stereotyping (Musumeci et al., 2020). With the removal of these concepts from the definition of banned sex-based discrimination would allow healthcare providers to refuse to serve transgender individuals and those not conforming to the traditional notions of sex and gender. Moreover, the final rule no longer explicitly prohibited covered entities from refusing or cutting down the services that are exclusively available to one gender or sex when sought by the representatives of another sex or gender.
In response to the 2020 changes, in July 2022, the HHS proposed a revised ACA anti-discrimination rule to reinstate large portions of the 2016 rule. The Department suggested that Section 1557 should be reapplied to many health insurers and third-party administrators and extended to providers receiving payment through Medicare Part B (Keith, 2022). In terms of definitions that were removed in 2020, the HHS proposed to interpret Section 1557’s prohibition of sex discrimination that includes notions such as sexual orientation, gender identity, and pregnancy-associated conditions. Besides, the 2022 proposal of updates to Section 1557 included the need to reinstate and expand the requirements of notice for enabling access to assistance in translation as well as any other supportive aids and services that individuals may require (Keith, 2022). Finally, the new ruling would reverse the “conforming amendments” in the previous rule, thus ensuring explicit non-discrimination protections covering LGBTQ individuals.
Legislative History of the Policy
Up to this date, there were two final rules of Section 1557 of the Affordable Care Act, the first one in 2016 and the second in 2020. Because the rulings were made under the impact of opposing political parties, the interpretations of the law in relevant provisions differed in scope and the definitions of relevant concepts. The reason for Section 1557 being interpreted differently in the second ruling is concerned with the lack of specifics. As suggested by Rosenbaum (2016), while the 2016 rule was relatively specific on the bases of discrimination, such as an individual’s status when transgender persons are concerned, there were otherwise no specific content standards set. Even though there were hints of examples of discrimination, the administration made clear that there would be additional broader regulatory standards established as investigations into specific practices is implemented.
Therefore, the reasonable flexibility of the first ruling made the second ruling possible more quickly, thus eliminating the definitions of discrimination based on sex and gender, enabling providers and insurers to be less restricted in their denial of services. It is expected that in the nearest future, the changes to the Section proposed by the HHS will be enforced, thus returning many of the initial provisions on discrimination, especially those concerning LGBTQ individuals. Once made final, the new rule will go into effect sixty days after the Federal Register publication.
References
Dunivin, Z. O., Yan, H. Y., Ince, J., & Rojas, F. (2022). Black Lives Matter protests shift public discourse. PNAS, 119(10).
Keith, K. (2022). HHS Proposes Revised ACA Anti-Discrimination Rule. Health Affairs. Web.
Musumeci, M., Kates, J., Dawson, L., Salganicoff, A., Sobel, L., & Artiga, S. (2020). The Trump Administration’s final rule on Section 1557 non-discrimination regulations under the ACA and current status. KFF. Web.
Rapfogel, N., Gee, E., & Calsyn, M. (2020). 10 ways the ACA has improved health care in the past decade. Web.
Rosenbaum, S. (2016). The Affordable Care Act and civil rights: The challenge of Section 1557 of the Affordable Care Act. Milbank Quarterly, 94(3), 464-467.
Wang, T., Kelman, E., & Cahill, S. (2017). What the new affordable care act non-discrimination rule means for providers and LGBT patients. Web.