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Section 1557 Nondiscrimination Requirements

Learn more about the nondiscrimination requirements under section 1557 of the ACA. See the chart of fees, taxes and penalties that may apply to employers and individuals.

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Section 1557 Nondiscrimination Requirements

Nondiscrimination Requirements

Section 1557 of the Affordable Care Act.

Under Section 1557 of the Affordable Care Act (ACA), individuals may not be denied, cancelled, limited, or refused health coverage on the basis of race, color, national origin, sex, age, or disability. The original rule was finalized in 2016.

On June 19, 2020, the Department of Health and Human Services’ (HHS’) Office for Civil Rights (OCR) published a final rule (the 2020 Rule) on nondiscrimination which repealed or replaced many provisions of the 2016 rule. Of significance, this rule repealed the 2016 rule's expanded definition of "basis of sex" that included pregnancy termination, sex stereotyping, and gender identity. The 2020 rule continued to prohibit discrimination on the "basis of sex," but under the prior interpretation of the word "sex" (i.e., as defined by gender assignment at birth).

In May 2021, the Biden Administration announced the Office for Civil Rights (OCR) would interpret and enforce Section 1557 of the ACA and Title IX’s nondiscrimination requirements based on sex to include sexual orientation and gender identity. The update was made in light of the June 2020 U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions.

The 2020 Rule applies to the part(s) of health programs or activities that receive federal financial assistance, and any program or activity under Title I of the ACA (i.e., Exchanges) or entities established under that Title. Under the 2020 rule, Section 1557 generally does not apply to self-funded group health plans under ERISA or short-term limited duration plans because the entities offering the plans are typically not principally engaged in the business of providing health care, nor do they receive federal financial assistance.

Key requirements affecting health plans and services include:

Ensure physical access and/or appropriate communication technology to assist people with applicable disabilities

Ensure meaningful access for people with limited-English proficiency (LEP) based on a "four-factor analysis" test that includes an assessment of the proportion of LEP individuals in the population being served, and the frequency with which they come in contact with the entity’s health program activity or service.

Provide accessible grievance procedures for individuals who believe they have been subjected to discrimination in their health care or health care coverage

The 2020 Rule also repealed provisions which required the inclusion of notices and taglines in at least fifteen languages with all "significant communications" to patients and customers.

The Trump Administration’s Final Rule on Section 1557 Non

Section 1557 of the Affordable Care Act prohibits discrimination based on race, color, national origin, sex, age, and disability in health programs and activities receiving federal funds. Here are the significant ways HHS's final rule would narrow the scope of this regulation.

The Trump Administration’s Final Rule on Section 1557 Non-Discrimination Regulations Under the ACA and Current Status

MaryBeth Musumeci

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, Jennifer Kates

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, Lindsey Dawson

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, Alina Salganicoff

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, Laurie Sobel

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, and Samantha Artiga

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Published: Sep 18, 2020

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ISSUE BRIEF TABLES ENDNOTES

Key Findings

On June 19, 2020, the Trump Administration issued final regulations implementing Section 1557 of the Affordable Care Act. Section 1557 prohibits discrimination based on race, color, national origin, sex, age, and disability in health programs and activities receiving federal financial assistance. Notably, it is the first federal civil rights law to prohibit discrimination in health care based on sex. The final rule, issued in the midst of the ongoing COVID-19 pandemic, significantly narrows the scope of a rule issued in 2016 by the Obama Administration by:

Eliminating the general prohibition on discrimination based on gender identity and sex-stereotyping and specific health insurance coverage protections for transgender individuals;

Adopting blanket abortion and religious freedom exemptions for health care providers;

Eliminating the provision preventing health insurers from varying benefits in ways that discriminate against certain groups, such as people with HIV or LGBTQ people;

Reducing protections that provide access to interpretation and translation services for individuals with limited English proficiency;

Eliminating provisions affirming the right of private individuals to challenge alleged violations of Section 1557 in court and obtain money damages (leaving the right to sue for courts to decide) and requirements for non-discrimination notices and grievance procedures;

Narrowing the regulations’ reach by only covering specific activities that receive federal funding, but not other operations, of health insurers and no longer applying the regulations to all HHS-administered programs; and

Eliminating prohibitions against discrimination based on gender identity and sexual orientation in ten other federal health care regulations outside Section 1557.

Just after the Administration published the final rule, the Supreme Court ruled that sex discrimination includes sexual orientation and gender identity in the employment context. Based on that decision, two federal courts issued nationwide preliminary injunctions blocking parts of the final rule: NY and DC courts blocked provisions excluding sex stereotyping from the definition of sex discrimination, and the DC court also blocked the religious freedom exemption. The NY court is now considering whether to block other provisions of the rule, and other lawsuits are pending.

Introduction

On June 19, 2020, the Department of Health and Human Services (HHS) finalized revised regulations implementing Section 1557 of the Affordable Care Act (ACA),1 which prohibits discrimination in health care based on race, color, national origin, sex, age, and disability in health programs and activities receiving federal financial assistance.2 The final rule (which mirrors a proposed rule issued by HHS in June of last year3) is a significant departure from the Obama Administration regulations issued in 2016. Specifically, the final rule eliminates nondiscrimination protections based on gender identity, as well as specific health insurance coverage protections for transgender individuals, adopts blanket abortion and religious freedom exemptions for health care providers, reduces protections for those with limited English proficiency, and limits the activities and entities covered, among other provisions. It also eliminates prohibitions on discrimination based on gender identity and sexual orientation in ten other federal regulations outside Section 1557.

The changes were scheduled to take effect on August 18, 2020, but a Supreme Court ruling in Bostock v Clayton County, Georgia,4 issued just days after the final regulation was released, found that discrimination based on sex encompasses sexual orientation and gender identity in the context of employment. Based on that decision, two federal courts have issued nationwide preliminary injunctions blocking the Administration from implementing parts of the final rule. A NY court blocked the implementation of provisions excluding sex stereotyping from the definition of sex discrimination.5 After the plaintiffs requested clarification about the scope of the preliminary injunction order, the court directed the plaintiffs to submit a list of provisions of the 2020 rule, beyond the definition of sex discrimination, that should be stayed in light of the Supreme Court’s Bostock decision for the court’s consideration.6 The DC court blocked the implementation of provisions excluding sex stereotyping from the definition of sex discrimination as well as provisions incorporating a blanket religious freedom exemption from claims of sex discrimination.7 Several other legal challenges to the rule are also pending.8

This issue brief summarizes HHS’s final rule and provides a side-by-side comparison to the Obama Administration 2016 rule (Table 1). It also examines HHS’s changes to other regulations, separate from Section 1557 (Table 2). Finally, it assesses the current status of the final rule in light of the recent Supreme Court ruling and subsequent legal challenges (Table 3). Figure 1 presents a timeline of key dates in Section 1557 implementation, including the development and revision of regulations and subsequent legal challenges. A more expansive timeline is contained in Table 4.

Source : www.kff.org

Section 1557 of the Patient Protection and Affordable Care Act

Section 1557 of the Patient Protection and Affordable Care Act (42 USC 18116) and its implementing regulation provide that an individual shall not be excluded from participation in, be denied the benefits of, or be subjected to discrimination on the grounds prohibited under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. (race, color, national origin), Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq. (sex), the Age Discrimination Act of 1975, 42 U.S.C. 6101 et seq. (age), or Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 (disability), under any health program or activity, any part of which is receiving federal financial assistance; any program or activity administered by the Department under Title I of the Act; or any program or activity administered by any entity established under such Title. The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services has enforcement authority with respect to health programs and activities that receive federal financial assistance from the Department of Health and Human Services (HHS), or are administered by HHS or any entity established under Title I of the Affordable Care Act. OCR is responsible for enforcing regulations issued under Section 1557 of the Affordable Care Act (Section 1557), protecting the civil rights of individuals who access or seek to access covered health programs or activities. Section 1557 prohibits discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, and gender identity), in covered health programs or activities. 42 U.S.C. § 18116(a).

If you believe you have been discriminated against on one of the bases protected by Section 1557, you may file a complaint with OCR.

Issuance of the 2020 Final Rule

On June 12, 2020, HHS OCR announced a final rule revising its Section 1557 regulations. Read the final rule | Read the Fact Sheet - PDF

Executive Summary of the Final Rule

Update (May 10, 2021)

On June 15, 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 (Title VII)’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity. Bostock v. Clayton County, GA, 140 S. Ct. 1731 (2020). The Bostock majority concluded that the plain meaning of “because of sex” in Title VII necessarily included discrimination because of sexual orientation and gender identity. Id. at 1753-54.

Since Bostock, two federal circuits have concluded that the plain language of Title IX of the Education Amendments of 1972’s (Title IX) prohibition on sex discrimination must be read similarly. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as amended (Aug. 28, 2020), reh’g en banc denied, 976 F.3d 399 (4th Cir. 2020), petition for cert. filed, No. 20-1163 (Feb. 24, 2021); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020), petition for reh’g en banc pending, No. 18-13592 (Aug. 28, 2020). In addition, on March 26, 2021, the Civil Rights Division of the U.S. Department of Justice issued a memorandum to Federal Agency Civil Rights Directors and General Counsel concluding that the Supreme Court’s reasoning in Bostock applies to Title IX of the Education Amendments of 1972. As made clear by the Affordable Care Act, Section 1557 prohibits discrimination “on the grounds prohibited under . . . Title IX.” 42 U.S.C. § 18116(a).

Consistent with the Supreme Court’s decision in Bostock and Title IX, beginning May 10, 2021, OCR will interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. This interpretation will guide OCR in processing complaints and conducting investigations, but does not itself determine the outcome in any particular case or set of facts.

In enforcing Section 1557, as stated above, OCR will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., and all other legal requirements. Additionally, OCR will comply with all applicable court orders that have been issued in litigation involving the Section 1557 regulations, including Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019); Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1 (D.D.C. 2020); Asapansa-Johnson Walker v. Azar, No. 20-CV-2834, 2020 WL 6363970 (E.D.N.Y. Oct. 29, 2020); and Religious Sisters of Mercy v. Azar, No. 3:16-CV-00386, 2021 WL 191009 (D.N.D. Jan. 19, 2021).

OCR applies the enforcement mechanisms provided for and available under Title IX when enforcing Section 1557’s prohibition on sex discrimination. 45 C.F.R. § 92.5(a). Title IX’s enforcement procedures can be found at 45 C.F.R. § 86.71 (adopting the procedures at 45 C.F.R. §§ 80.6 through 80.11 and 45 C.F.R. Part 81).

Read the Federal Register Notice

Read the Press Release

Update (May 25, 2022)

On May 16, 2022, the court in Christian Employers Alliance v. EEOC, No. 1:21-cv-00195 (D.N.D.), issued a preliminary injunction against HHS and EEOC. The preliminary injunction prohibits HHS from interpreting or enforcing Section 1557 of the ACA and any regulations against the plaintiffs’ present or future members in a manner that would require them to provide, offer, perform, facilitate, or refer for gender transition services or in a manner that restricts or compels their speech on gender identity issues. The order can be found here:

Source : www.hhs.gov

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