Jewish groups and legal professionals are hailing new federal guidance aimed at combating antisemitic discrimination in healthcare as a powerful and timely tool for protecting Jewish and Israeli patients and medical professionals, while warning that its impact will depend on the use and enforcement of those protections.

The Department of Health and Human Services’ Office for Civil Rights issued a “Dear Colleague” letter on Sept. 3 clarifying how federal civil rights laws apply to antisemitic discrimination in HHS-funded programs and activities. The guidance addresses protections for Jewish and Israeli patients and healthcare professionals — including Title VI of the Civil Rights Act and Sec. 1557 of the Affordable Care Act — in healthcare, medical education, clinical training and research.

During a webinar hosted by the American Jewish Medical Association on Thursday titled “From Guidance to Action: Understanding the New HHS Protections Against Antisemitic Discrimination in Healthcare,” attorneys from Jewish advocacy and legal organizations described the guidance as an important affirmation of existing civil rights protections and a signal that HHS is prepared to address what they described as a growing problem of antisemitism in the medical field.

Denise Katz-Prober, director of legal initiatives at the Brandeis Center, said her organization has received a “steady stream” of reports from Jewish and Israeli patients and healthcare professionals since the Oct. 7, 2023, Hamas attacks. She cited allegations including Jewish and Israeli patients being denied quality care, providers who identify as Zionists being blacklisted from referrals and an Israeli clinical intern at Boston Medical Center being ostracized and denied mentorship opportunities after reporting antisemitic material at her workplace.

“These antisemitic practices and others by recipients of federal funds, the harassment, discrimination, and denial of care against Jews and Israelis are not only wrong, immoral and dangerous; they violate the laws that HHS enforces, and they therefore implicate OCR’s enforcement authority,” Katz-Prober said.

She said the new guidance is significant in part because it explicitly addresses protections for Jews based on shared ancestry and ethnicity, as well as protections for Israelis based on national origin.

“I want to emphasize … the letter makes clear that both Jewish Americans and Israelis should not be discriminated against in healthcare settings,” Katz-Prober said. “We have seen the way that Israelis have been targeted, both based on their Jewish ancestry and also their national origin … and what HHS is signaling is that discrimination against Israelis based on national origin falls under this rubric of antisemitism in healthcare settings that is prohibited.”

Sara Colb, director of advocacy at the Anti-Defamation League, stressed that the guidance does not create an entirely new set of regulations. Rather, she said, it makes clear to healthcare institutions that HHS intends to pay attention to how existing protections are being applied.

“This isn’t a new law that’s being set here by HHS. It’s a sort of affirmation of what the law already requires,” Colb said. “But it is so vital that HHS, in issuing this guidance, is saying, ‘Hey, you hospitals, providers, healthcare institutions, we are taking note of what we are seeing of how significant this problem is, that it is growing, and we are going to hold you accountable if you do not take steps to make sure that you take care of this.’”

Colb said the consequences of antisemitism in healthcare can be particularly serious because patients are vulnerable and dependent on medical institutions for their care. She described the problem as “rapidly becoming a public health crisis” and said ADL has released recommendations for hospitals and healthcare institutions to address it.

For patients and professionals who encounter discrimination, the speakers repeatedly emphasized the importance of documenting incidents and reporting them to the federal government rather than assuming there is nothing they can do.

“You don’t need to know the specifics of the law. You don’t need to know a legal theory or how the protected categories work,” Colb said. “What you need to know is that you need to report. If you’re a patient experiencing discrimination, antisemitic discrimination, report to HHS’s Office of Civil Rights. Report to ADL as well.”

Michael Scheinman, a former HHS civil rights investigator who now works for the legal arm of StandWithUs, made a similar case from his experience investigating complaints against hospitals and other institutions. 

“One of the most important things I learned during my time there is that civil rights protections, like those explained in this Dear Colleague letter, are very valuable, but they mean little to nothing if courageous patients, parents, practitioners and institutions do not invoke them,” Scheinman said.

Scheinman said institutions also have a responsibility to act proactively, including by training employees to recognize modern forms of antisemitism, creating accessible reporting mechanisms and looking for patterns in complaints.

Rick Barton, an attorney and AJMA board member, said the guidance has particular significance because it comes from HHS, which oversees the Centers for Medicare and Medicaid Services and has substantial regulatory and funding leverage over hospitals.

“Medicare and Medicaid represents about half of their budget, and so whenever the HHS calls and is there to enforce CMS regulations, hospitals stand up and they take notice,” Barton said.

The speakers also highlighted the guidance’s reference to the International Holocaust Remembrance Alliance’s working definition of antisemitism. Barton said the reference could help institutions recognize non-traditional forms of antisemitism, including in instances when it is masked as anti-Zionism or “political disagreement over Israel.”

“There’s always this debate that takes place within institutions about, ‘I’m really not antisemitic because I don’t have anything against Jews. I just have … these arguments with respect to Israel and its policies and everything like that,’” Barton said. “It’s really important that we help hospital administration and medical staff … understand really how antisemitism manifests itself, and by reinforcing the [IHRA] definition, it allows for those of us who are advocating … to explain to the institutions … how [anti-Zionism] is rooted in antisemitism.”

Ultimately, the speakers said the guidance’s significance will be measured by what happens after its issuance. 

“The test now is going to be whether HHS backs up the letter with strong enforcement, and this includes investigations and holding institutions accountable for violating the law,” Katz-Prober said. “The guidance is important and timely as a reminder that the growth of antisemitism in healthcare is a danger not only for Jewish and Israeli healthcare providers, patients, trainees and students, but also for everyone who depends on the American healthcare system.”