The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has issued final regulations revising the existing Affordable Care Act (ACA) Section 1557 regulations. Section 1557 prohibits any covered entity from refusing to treat an individual based on race, color, national origin, sex, age or disability. These final regulations seek to address gaps identified in prior regulations to advance protections under Section 1557. OCR also issued a related press release, fact sheet and set of FAQs on the 2024 final regulations.
Generally, “covered entities” are health programs and activities that receive federal funding assistance (FFA) as well as insurers participating in a state or federally facilitated exchange and any health program funded by HHS. Section 1557 does not apply directly to employer sponsors of self-insured group health plans that do not receive FFA.
Background
The first Section 1557 final regulations issued in 2016 were based on a broad interpretation of the statute. In 2020, the Trump administration issued a second set of final regulations proposing to rescind large portions of the 2016 final regulations, including the broad definition of “on the basis of sex” that protected people seeking reproductive care and LGBT+ individuals. The 2020 regulations also eliminated the required notice of nondiscrimination and notice of the availability of language assistance services (“taglines”) in a range of communications.
A few days after the 2020 final regulations were issued, the U.S. Supreme Court ruled in Bostock v. Clayton County that the definition of “on the basis of sex” includes sexual orientation and gender identity. Subsequently, in 2022, newly proposed Section 1557 regulations were issued that 1) affirmed the Biden administration’s executive order protections against discrimination on the basis of sex, including sexual orientation and gender identity; and 2) reiterated protections from discrimination for seeking reproductive healthcare services.
Key provisions
Under the 2024 ACA Section 1557 final regulations:
- Health insurance issuers are brought back into coverage under Section 1557. The final regulations reinstate and strengthen Section 1557’s application to health insurance issuers that receive FFA, setting clear nondiscrimination standards for the health insurance industry.
- Section 1557 once again applies to all HHS-administered health programs and activities. The 2020 final regulations limited the scope of Section 1557’s nondiscrimination requirements; however, HHS now believes that interpreting Section 1557 to cover all health programs and activities administered by HHS is the best reading of the statute.
- LGBT+ patients are protected from discrimination, and clarification is provided on Section 1557’s prohibition on sex discrimination. Consistent with the U.S. Supreme Court’s ruling in Bostock, the final regulations affirm that protections against sex discrimination include protections against discrimination on the basis of sexual orientation and gender identity. The final regulations also clarify that sex discrimination includes discrimination on the basis of sex stereotypes; sex characteristics, including intersex traits; and pregnancy or related conditions.
- Covered entities must inform individuals that language assistance and services are available. Recipients of FFA, HHS-administered health programs and activities, and state and federally facilitated exchanges must provide notices in English and in at least the 15 most common languages spoken by people with limited English proficiency (LEP) in the state or states served by the covered entity. These notices must be communicated to individuals with disabilities as effectively as they are to individuals without disabilities. Covered entities must provide the notices in prominent locations both physically and on their websites, make them available upon request and include them with a specific list of communications.
- Covered entities must take steps to identify and mitigate discrimination when using patient care decision support tools. Covered entities must not discriminate against any individual on the basis of race, color, national origin, sex, age or disability through the use of patient care decision support tools, which include automated and non-automated tools, mechanisms, methods and technology to provide patient care.
- Covered entities must implement Section 1557 policies and staff training. Specifically, policies and related staff training are required for providing language assistance services for people with LEP and to ensure effective communication and reasonable modifications for people with disabilities.
- Nondiscrimination requirements apply to telehealth programs and activities. Covered entities must not discriminate in their delivery of health programs and activities provided through telehealth.
- Federal guarantees regarding religious freedom and conscience are to be respected. Section 1557 regulations will not apply if they would violate federal protections for religious freedom and conscience.
- Medicare Part B payments constitute FFA. The Centers for Medicare & Medicaid Services believes that prior interpretations of the statute that did not consider Medicare Part B as being FFA are outdated and do not reflect the best reading of the law.
Going forward
Employer plan sponsors should begin taking steps to ensure compliance with the final regulations, which generally take effect on or after July 5, 2024. A more detailed timetable on the effective dates of specific provisions can be found in the FAQs; however, lawsuits have already been filed against numerous requirements in the final regulations, so plan sponsors should closely monitor any developments.
