On April 26, 2024, the U.S. Department of Health and Human Services’ (HHS) Office of Civil Rights (OCR) issued a final rule under Section 1557 of the Affordable Care Act, which prohibits discrimination based on race, color, national origin, sex, age or disability in certain health programs and activities. The final rule is scheduled to be published on May 6, 2024, and will take effect 60 days later. However, effective dates vary for certain provisions of the rule.
Background
Prior rules and guidance that the OCR has published to implement Section 1557 have been the subject of numerous lawsuits, dating back to when initial regulations were issued in 2016. The litigation has primarily focused on:
- Which health programs and activities are subject to Section 1557’s nondiscrimination requirements; and
- Whether sex discrimination includes discrimination based on gender identity, sexual orientation and termination of pregnancy.
- Under final regulations from 2020, gender identity and pregnancy termination insurance issuers are covered under Section 1557, and Section 1557 applies to all HHS-administered health programs and activities;
- Protections against sex discrimination include discrimination on the basis of sexual orientation and gender identity, as well as sex stereotypes, sex characteristics, and pregnancy or related conditions; and
- Nondiscrimination requirements apply to health programs and activities provided through telehealth services.
In addition, entities covered by the final rule are required to:
- Notify individuals that language assistance services and auxiliary aids are available if needed;
- Take steps to identify and mitigate discrimination when they use patient care decision support tools; and
- Implement and train their staff on policies and procedures to ensure compliance with the final rule.
Action Steps
The final rule is likely to become the subject of more lawsuits. Plan administrators and issuers should monitor all legal developments in consultation with benefits counsel and work closely with their benefits advisors in complying with their Section 1557 obligations. The latest updates can be found on the OCR Section 1557 webpage.
