HHS final regulations expand ACA nondiscrimination protections

The Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) has issued final regulations amending existing regulations relating to Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits a covered entity from refusing to treat an individual on the basis of race, color, national origin, sex, age, or disability. These final regulations are intended to address gaps identified in prior regulations to enhance protections under Section 1557. OCR also issued a related press release, fact sheet, and set of frequently asked questions about the 2024 final regulations.

Broadly speaking, “covered entities” include health programs and activities receiving Federal Financial Assistance (FFA), as well as insurers participating in a state or federally supported exchange and any HHS-funded health programs. Section 1557 does not directly apply to employers sponsoring self-insured group health plans that do not receive FFA.

Background

First final regulations of Art. 1557 issued in 2016 were based on a broad interpretation of the Act. In 2020, the Trump administration issued a second set of final regulations, proposing to repeal much of the 2016 final regulations, including the broad definition of “based on sex” that protected people seeking reproductive care and LGBT+ people. The 2020 regulations also eliminated the required notice of nondiscrimination and notice of the availability of language assistance services (“taglines”) in a number of communications.

Days after issuing the final regulations for 2020, the U.S. Supreme Court ruled Bostock v. Clayton County that the definition of “based on gender” includes sexual orientation and gender identity. This was followed in 2022 by the issuance of newly proposed Section 1557 regulations that 1) reaffirmed the Biden administration’s executive order protections against sex discrimination, including sexual orientation and gender identity; and 2) re-emphasized protections against discrimination when seeking reproductive health services.

Key provisions

Under the 2024 ACA Section 1557 final regulations:

• Health insurance issuers are reinstated to Section 1557 coverage. The final regulations restore and strengthen the application of Section 1557 to health insurance issuers receiving FFA, establishing clear nondiscrimination standards for the health insurance industry.
• Section 1557 again applies to all health programs and activities administered by HHS. The 2020 final regulations limited the scope of the nondiscrimination requirements set out in Article 1557; however, HHS currently believes that the best interpretation of the statute is that of Art. 1557 to cover all health programs and activities administered by HHS.
• LGBT+ patients are protected against discrimination; also explained in Art. 1557 prohibition of discrimination on the basis of sex. Pursuant to a 2011 United States Supreme Court ruling Bostockthe final regulations state that protection against discrimination based on sex includes protection against discrimination based on sexual orientation and gender identity. The final regulations also clarify that sex discrimination includes discrimination based on gender stereotypes; sexual characteristics, including intersexual characteristics; 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 supported exchanges must provide notices in English and at least the 15 languages ​​most commonly used by people with limited English proficiency (LEP) in the state or states served by the covered entity. These notices must be provided to people with disabilities as effectively as to people without disabilities. Covered entities must post notices in conspicuous places both physically and on their websites, make them available upon request, and include them in a specified 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 person on the basis of race, color, national origin, sex, age, or disability in the use of patient care decision support tools, which include automated and non-automated tools, mechanisms, methods, and technology that provide patient care .
• Covered entities must implement the Section 1557 policies and provide staff training. Specifically, policies and related staff training are required to provide language assistance services to individuals with LEP and to ensure effective communication and reasonable accommodations for individuals with disabilities.
• Nondiscrimination requirements apply to telehealth programs and activities. Covered entities may not discriminate in the delivery of health programs and activities provided via telehealth.
• Federal guarantees regarding freedom of religion and conscience must be respected. Section 1557 would not apply if it would violate federal protections of religious freedom and conscience.
• Medicare Part B payments are FFA. The Centers for Medicare and Medicaid Services believes that prior interpretations of the statute that did not recognize Medicare Part B as an FFA are outdated and do not reflect the best reading of the law.

Go ahead

Employer plan sponsors should begin taking steps to ensure compliance with the final regulations, which generally become effective on or after July 5, 2024. A more detailed schedule of the effective dates of each regulation 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 developments.