On Friday, June 12, the U.S. Department of Health and Human Services (HHS) finalized a rule under Section 1557 of the Affordable Care Act (ACA) that maintains vigorous enforcement of federal civil rights laws on the basis of race, color, national origin, disability, age, and sex, and restores the rule of law by revising certain provisions that go beyond the plain meaning of the law as enacted by Congress. The final rule will also relieve the American people of approximately $2.9 billion in undue and ineffective regulatory burdens over five years.
On December 31, 2016, a federal court preliminarily enjoined, on a nationwide basis the prior administration’s attempt to redefine sex discrimination in the 2016 Rule, concluding that the provisions were likely contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. A second federal court agreed. On October 15, 2019, the first federal court issued a final judgment, and vacated and remanded these provisions as unlawful; this final ruling is binding on HHS. HHS has not been able to enforce these provisions since December 2016, and the provisions have been vacated since October 2019.
Under the final rule, HHS eliminates certain provisions of the 2016 Rule that exceeded the scope of the authority delegated by Congress in Section 1557. HHS will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word “sex” as male or female and as determined by biology. The 2016 Rule declined to recognize sexual orientation as a protected category under the ACA, and HHS will leave that judgment undisturbed.
You can read the press release from CMS here.