Section 1557

September 9, 2022

On August 4, 2022 the United States Department of Health and Human Services (HHS) published its notice of proposed rulemaking (NPRM) to the Federal Registry to modify Section 1557, the “Nondiscrimination in Health Programs and Activities Clause” of the Affordable Care Act.  The proposed rule will:

  • Re-define discrimination “on the basis of sex” to include sexual orientation and gender identity (SOGI), gender transition, sex stereotypes, reproductive health decisions and termination of pregnancy as protected.
  • Require healthcare professionals (regardless of their conscience rights or sincerely held religious beliefs) to perform or assist in “gender reassignment” surgeries (including on children), prescribe puberty blockers or cross-sex hormone treatment and any associated cosmetic procedure, and perform or assist with abortions. The proposed rule goes on to say that “a provider’s belief that gender transition or other gender-affirming care can never be beneficial for such individuals (or its compliance with a state or local law that reflects a similar judgment) is not a sufficient basis for a judgment that a health service is not clinically appropriate.”
  • Require a healthcare professional with a religious or ethical objection to “submit” their objection to a committee (non-medical) to the office of Civil Rights at HHS. If exemption request is not granted, there is no appeal process.
  • Require insurance plans and some employers to pay for experimental procedures/treatments. The proposed rule would ensure a provider could not “otherwise deny or limit coverage, deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions on coverage, for specific health services related to gender transition or other gender-affirming care if such denial, limitation, or restriction results in discrimination on the basis of sex.”
  • Withhold federal funding to institutions that receive federal grants if a healthcare professional refuses to participate in these procedures due to their sincerely held beliefs.

The proposed rule will be enforced by government under civil rights statutes. Those who do not comply will be subject to federal lawsuits and termination of Medicare and Medicaid funding, and other further consequences.

The public commenting period is open through close of business October 3, 2022. We urge you to comment on this VERY CRITICAL regulation that will impinge on the conscience freedoms of healthcare providers everywhere in the United States.

You can submit your comment by going to the Federal Registry here.  Then click on the green “Submit a Formal Comment” button.  You can directly write your comment into the text box, or we encourage you to attach your comment as a file and/or attach supporting documents to your comment. Thank you.

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