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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations
indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.
FCC v. Fox Television Stations, Inc., 556
U.S. 502, 515 2009. Given the limited justification for the adoption of 75.300c and d, and the fact that the Department was not statutorily obligated to add those provisions in the first place, the explanations provided in the proposed ruleand in this final rulemeet the applicable standards.
Comments: Many commenters opposed the proposed rule, contending that it would permit organizations to discriminate against members of the LGBTQ community, women, and religious minorities. One commenter claimed that the proposed rule eliminates protections for traditionally marginalized populations, including LGBTQ people, and permits discrimination in the administration of HHS programs and services based on gender identity or sexual orientation.
Many suggested that LGBTQ individuals and other marginalized communities could lose access to healthcare through discrimination under the proposed rule.
One commenter claimed that the proposed rule lays the foundation for possible discrimination against certain groups of people; other commenters expressed concern that it will set a precedent for discrimination in other health and human services programs.
One commenter suggested that the proposed changes would increase the burdens on the LGBTQ community, women, and people of minority faiths, violating their civil rights and imposing damage far greater than the monetary effects on the regulated community. A
number of State Attorneys General opposed the proposed rule, contending that it would eliminate explicit protections for age, disability, sex, race, color, natural origin, religion, gender identity, or sexual orientation, and replace them with a generic prohibition of discrimination to the extent prohibited by federal statutes, making grantees free to discriminate if they so choose. One commenter stated that the proposed rule would allow HHS award recipients, whether religious or nonreligious, to discriminate based on nonmerit factors unless some other prohibition applies explicitly to the program or activity. A number of commenters argued that discrimination has no place in HHS programs and that HHS has no authority to hold money or discriminate against anyone with their tax dollars. Other commenters claimed that the proposed rule would permit taxpayer dollars to support
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organizations that may discriminate against, or violate the rights of, vulnerable people who need services, or in violation of equal rights. Some commenters argued that discrimination is against American beliefs and that law and government policy should not allow it. Another commenter noted that all of humankind is created in the image of God, and that no form of discrimination is defensible.
In addition to the potential impact on foster care and adoption discussed below, commenters asserted that the proposed rule would have an adverse impact on children and adults served in multiple systems of care. Other commenters claimed a negative impact on various health and human services programs supported by HHS funding, including housing, homeless shelters, child care, education, food assistance, health care, cancer screenings, immunization programs, reproductive care, and STD/STI and HIV/AIDS
programs, Head Start and other prekindergarten programs, domestic violence hotlines, substance abuse programs, resettlement efforts for refugees and asylees, and community support services for seniors and people with disabilities. Several commenters claimed that the proposed rule could restrict access to HIV prevention and treatment and would be a setback to the administrations Ending HIV as an epidemic initiative.
Response: The Department believes that all people should be treated with dignity and respect, especially in the Departments programs, and that they should be given every protection afforded by the Constitution and the laws passed by Congress. The Department does not condone the unjustified denial of needed medical care or social services to anyone. And it is committed to fully and vigorously enforcing all of the nondiscrimination statutes entrusted to it by Congress. In this final rule, the Department reemphasizes this commitment to apply and enforce those nondiscrimination laws.
The Department does not agree with commenters assertion that, should the Department limit its nondiscrimination regulatory and enforcement activities to the nondiscrimination laws passed by Congress, grantees will discriminate against vulnerable populations or deny services to the intended beneficiaries of departmental programs, or that individuals who are otherwise eligible to receive services from programs funded by the Department will not receive them. Commenters offered little evidence that this was the case before the current 75.300c and d became
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effective in January 2017, and there is no reason to believe that this will occur as a result of the fact that the regulation will only require compliance with statutory nondiscrimination requirements. This final rule merely removes the regulatory requirement to comply with nonstatutory nondiscrimination requirements; grant recipients are still required to comply with the statutory nondiscrimination requirements that are applicable to the programs for which they receive Department fundingand they remain free, consistent with their other legal and regulatory obligations, to observe nonstatutory nondiscrimination practices.25 To the extent that commenters view statutory nondiscrimination provisions as insufficient, they can address that issue with Congress.
The Department is committed to improving the health and wellbeing of all Americans.26 Consistent with its statutory authority, the Department seeks, wherever possible, to remove barriers to healthcare. As a matter of policy, the Department recognizes and works to address barriers to treatment caused by stigma about depression, anxiety, substance use disorder, and other comorbid mental and behavioral health conditions.27 For example, this final rule does not alter or affect the longstanding Federal protections against discrimination for individuals with HIV:
Section 504, and hence also this final rule, prohibits discrimination on the basis that an individual has HIV.28 OCR
continues to pursue major enforcement 25 A few commenters complained about the proposed removal of the express enumeration of the required nondiscrimination in 75.300c.
However, 75.300a requires the Departments grantmaking agencies to communicate all of the relevant public policy requirementswhich includes the applicable nondiscrimination requirementsto grantees and to incorporate them either directly or by reference in the terms and conditions of the Federal award.
26 When there are a sufficient number of eligible organizations and the issue is which ones should be funded, an increase in the number of such organizations makes it more likely that the funding component or recipient would be able to select more effective or higher quality recipients/
subrecipients.
27 See, e.g., Pain Management Task Force, Pain Management Best Practices, Fact Sheet on Stigma Aug. 13, 2019, https www.hhs.gov/sites/default/
files/pmtf-fact-sheet-stigma_508-2019-08-13.pdf Compassionate, empathetic care centered on a patient-clinician relationship is necessary to counter the suffering of patients. . . . Patients with painful conditions and comorbidities, such as anxiety, depression or substance use disorder SUD
face additional barriers to treatment because of stigma..
28 See 29 U.S.C. 70520 incorporating ADA
definition of disability into Section 504; 42 U.S.C.
1210213; 28 CFR 35.108d2iiiJ.

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