HHS Issues Proposed Rule to Eliminate Certain Nondiscrimination and Language Access Provisions

By Brendan Flinn, Director of Home & Community-Based Services, LeadingAge

A new proposed rule from U.S. Department of Health and Human Services seeks to eliminate nondiscrimination protections in health care and aging services settings for LGBT people and those with limited English proficiency.

On June 14, the U.S. Department of Health and Human Services (HHS) issued through the Federal Register a proposed rule that if finalized would eliminate certain anti-discrimination protections in health and long-term services and support (LTSS) settings, particularly as it relates to LGBT individuals and non-English speakers. Below is a list of key changes proposed by HHS:

  • Sexual orientation, sex stereotypes, and gender identity: The proposed rule would remove references to sex stereotypes and gender identity as being covered by nondiscrimination protections for people who receive services (including aging services) covered by Medicaid, Medicare and other HHS-funded sources (like Older Americans Act). It would also eliminate specific references to sexual orientation and gender identity from nondiscrimination requirements covering state policy planning, Medicaid managed care plans and PACE organizations. Note that many of the current provisions are subject to pending court action and not presently enforceable.
  • People with no or limited English proficiency: The proposed rule would remove the current requirement for covered entities (those that receive Medicaid, Medicare and other HHS dollars) to post notices of nondiscrimination in languages other than English, as well as taglines in those languages on key documents. It would also roll back recommendations to providers related to developing language access plans.

In addition to these, the proposed rule would limit how HHS can enforce nondiscrimination protections.

The Kaiser Family Foundation published a summary analysis of the proposed rule, and Justice in Aging is hosting a public webinar discussing the proposed rule on July 10 at 2 p.m. EST.

Comments to the proposed rule are due on August 13.

LeadingAge will be submitting a comment letter and member feedback is welcome. We will be opposing the proposed rule’s removal of protections related to sexual orientation, sex stereotypes, and gender identity.

Please contact Brendan Flinn (bflinn@leadingage.org) of the LeadingAge staff with any questions related to the proposed rule.