HHS Proposal Revises Section 1557 of ACA
The Department of Health and Human Services (HHS) has introduced a notice of proposed rulemaking implementing Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in covered health programs and activities. HHS has introduced a final rule twice before but was unable to implement the rule following civil litigation. The proposed rule seeks to clarify Section 1557 by addressing gaps identified in prior regulation, as follows.
- Reinstates the scope of Section 1557 to cover HHS’s health programs and activities. The proposed rule would apply to any health program or activity that receives directly or indirectly federal financial assistance from HHS, any health program or activity administered by HHS, and every program or activity administered by an entity established under Title I of the ACA. Federal financial assistance includes credits, subsidies, and contracts of insurance. Examples of federal financial assistance include Medicaid, CHIP, Medicare Parts A, B, C, and D, and HHS grant programs.
- Clarifies the application of Section 1557 nondiscrimination requirements to health insurance issuers that receive federal financial assistance.
- Aligns regulatory requirements with Federal court opinions to prohibit discrimination on the basis of sex—including sexual orientation and gender identity. Clarifies that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions. The rule may also seek to expand discrimination on the basis of pregnancy to include “pregnancy termination.” In addition, the rule would introduce discrimination based on association (i.e., a parent harmed by the discrimination of a child).
- Ensures requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures. The proposed rule requires covered entities with 15 or more employees to designate at least one employee to serve as a Section 1557 coordinator to coordinate compliance with Section 1557. The written policies and procedures must include grievance procedures, auxiliary aids and services procedures, and procedures for reasonable modifications for individuals with disabilities.
- Requires entities to give staff training on the provision of language assistance services for individuals with limited English proficiency (LEP), and effective communication and reasonable modifications to policies and procedures for people with disabilities. Moreover, covered entities would be required to provide a notice of nondiscrimination along with a notice of the availability of language assistance services and auxiliary aids and services. The notice may be provided through written translations or in-language recorded audio or video clips.
- Explicitly prohibits discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities.
- Clarifies that nondiscrimination requirements applicable to health programs and activities include those services offered through telehealth, which must be accessible to LEP individuals and individuals with disabilities.
- Refines and strengthens the process for raising conscience and religious freedom objections. The rule would permit covered entities to request modified compliance or exemption from the requirements of Section 1557 due to a religious or conscience objections.
Public comments are due within 60 days following the publication in the federal register.