CMS releases proposed rule that would reinstate gender identity, sexual orientation protections

On Monday July 25, 2022, CMS announced a proposal that would reinstate protections on the basis of gender identity and sexual orientation in Centers for Medicare & Medicaid Services regulations. The CMS-related provisions are included as part of a proposed rule, “Nondiscrimination in Health Programs and Activities,” that revises the implementing regulation for Section 1557 of the Affordable Care Act.

The proposed rule, among other things, according to HHS, reinstates protections on the basis of gender identity and sexual orientation in CMS regulations that were deleted in a
2020 rule. That 2020 rule, HHS said, amended 10 provisions in the CMS regulations, all of which cover at least some entities that also are subject to Section 1557, to delete language that prohibited discrimination on the basis of sexual orientation and gender identity. The changes announced Monday also would interpret Medicare Part B as federal financial assistance.

HHS encourages all stakeholders — specifically mentioning healthcare providers, healthcare professional associations, consumer advocates, beneficiaries and their families, health insurance issuers and government entities — to submit comments on the rule within 60 days after its publication in the Federal Register. Publication is being scheduled.

Comments, identified by RIN Number 0945-AA17, may be submitted electronically through, by mail or via hand delivery or courier to the following address: U.S. Department of Health and Human Services, Office for Civil Rights, Attention: 1557 NPRM (RIN 0945-AA17), Hubert H. Humphrey Building, Room 509F, 200 Independence Ave SW., Washington, DC 20201.

The proposed rule is not yet published in the Federal Register, but a
PDF has been posted.

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