Skip to main content

The Impact of the ACA 1557 Final Regulations on Gender-Affirming Care

The Impact of the ACA 1557 Final Regulations on Gender-Affirming Care
Thursday, May 30, 2024

Section 1557 of the Affordable Care Act (ACA) prohibits discrimination on the basis of race, color, national origin, sex, age or disability, or any combination thereof, in a health program or activity, any part of which is receiving federal financial assistance.

On May 6, 2024, the US Department of Health and Human Services Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services published final regulations (final regulations) implementing Section 1557 (Our summary and overview of the final regulations is available here.) Entities that are subject to Section 1557 (covered entities) include hospitals, health clinics, health insurance issuers, state Medicaid agencies and community health centers. While group health plans are not themselves covered entities unless they receive federal financial assistance (e.g., certain Medicare Part D programs and Employer Group Waiver Plans), carriers that provide administrative services to group health plans may themselves be covered entities if they receive federal financial assistance (e.g., by selling Medicare Advantage products).

Reversing prior law, the final regulations unambiguously prohibit categorical coverage exclusions or limitations for health services related to gender transition or other gender-affirming care. OCR finds support for this change in the US Supreme Court’s decision in Bostock v. Clayton County, which held that Title VII of the Equal Employment Act prohibits an employer from discriminating against an individual on the basis of sexual orientation. But prohibiting categorical coverage exclusions is not the same thing as requiring covered entities to provide access to gender-affirming care under all circumstances. There are limits; covered entities must not:

[D]eny or limit services based on gender identity or sex assigned at birth, adopt any policy of treating individuals differently on the basis of sex, including to the extent it prevents an individual from engaging in a health program or activity consistent with the individual’s gender identity, or deny or limit services sought for gender transition or other gender-affirming care based on sex assigned at birth or gender identity.

The provision would outlaw blanket bans on both gender-affirming care itself and on specific gender-affirming procedures (like facial feminization surgery). But it would also prohibit plans or carriers that qualify as covered entities from covering breast reconstruction for cancer treatment, or hormones to treat post-menopause symptoms, without also covering these procedures to treat gender dysphoria.

The final regulations do not interfere with individualized clinical judgment about the appropriate course of care for a patient. (The preamble makes further claims that OCR has a general practice of deferring to a clinician’s judgment about whether a particular service is medically appropriate for an individual, or whether the clinician has the appropriate expertise to provide care.) A provider’s belief that gender transition or other gender-affirming care can never be beneficial, 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 never clinically appropriate, however.

The 2016 final Section 1557 regulations were successfully challenged in Franciscan Alliance v. Burwell (N.D. Tex. 2016), which held that Section 1557’s cross-reference to Title IX incorporates that statute’s religious exemption. While OCR disagrees with the holding, the final regulations provide an exemption for any portion of the rule that “would violate applicable Federal protections for religious freedom and conscience.” There is also an administrative process for recipients to seek an assurance of exemption in writing from the application of a provision of Section 1557 under this exception.

Less clear is how the final regulation will interact with the two dozen or so state laws that, among other things, limit access to gender-affirming care for children and adolescents. The preamble to the final rule recognizes that “some States may have laws [ ] that are contrary to the final rule’s nondiscrimination protections.” OCR is of the view that these laws are preempted by the ACA. (The ACA states that “nothing in this title shall be construed to preempt any State law that does not prevent the application of the provisions of this title,” which means that states can adopt protections that go beyond what the ACA requires but may not prevent a federal law from being implemented.) One or more challenges to the final regulations’ rules governing gender-affirming care are all but certain.

© 2024 McDermott Will & Emery