Section 1557 of the Affordable Care Act prohibits discrimination based on race, color, national origin, sex, age or disability in health programs and activities that receive federal financial assistance.
On June 19, 2020, HHS issued revised regulations to implement this provision, taking into account recent developments in civil rights law and litigation over the rule. These revisions marked a marked departure from previous rules issued by the Obama Administration and reflect legal challenges including a Supreme Court ruling in Bostock v. Clayton County.
Definitions
Section 1557 prohibits discrimination based on race, color, national origin, sex, age or disability in health programs and activities that receive federal financial assistance from HHS (including credits, subsidies or contracts of insurance) or are administered by HHS. This includes state Medicaid agencies, Medicare Advantage organizations, health insurance issuers, Medicare Part D plan sponsors and entities created under Title I of the ACA such as Marketplaces.
Contrary to 2016 and 2020 regulations, OCR is no longer applying Section 1557 to employment discrimination. Nonetheless, covered entities providing or offering employer-sponsored group health coverage should remain aware of their obligations under Section 1557.
Covered entities
Under section 1557 of the Affordable Care Act, health programs and activities that receive federal funds may not discriminate against individuals based on race, color, national origin, sex, age or disability. This prohibition is designed to guarantee that everyone has access to quality healthcare without fear of discrimination.
HHS recently proposed a rule to broaden the coverage of entities covered by HIPAA, such as hospitals, health clinics, health insurance issuers, physician practices, community-based healthcare providers, nursing facilities, residential or community-based treatment facilities and other similar combinations.
The proposed rule also lays out specific policies and procedures that covered entities must adopt to abide by the regulations. For instance, they would need to appoint at least one employee as their Section 1557 coordinator.
HHS is proposing to amend its 2016 and 2020 rules in order to ban discrimination based on sex with respect to an individual’s marital, parental or family status. This new prohibition does not appear in prior regulations and stems from enforcement issues encountered during the implementation of Section 1557 by HHS.
Policies and procedures
Section 1557 of the Civil Rights Act prohibits discrimination based on race, color, national origin, sex, age or disability under any health program or activity receiving Federal financial assistance. The Department of Civil Rights enforces this prohibition through Title VI, Title IX, Age Act and Section 504 regulations.
Despite a strong public interest in providing meaningful access to the coverage and services covered by Section 1557, there has been widespread confusion about its scope. To address these concerns, the Department is proposing to replace its Section 1557 Regulation with a more comprehensive framework that better balances LEP individuals’ rights with regulatory entity obligations in support of those rights.
Furthermore, the proposed rule is intended to guarantee compliance with preexisting civil rights statutes and regulations that prohibit discrimination based on sexual orientation and gender identity. Drawing from Supreme Court precedent, it strengthens the definition of discrimination “on the basis of sex” to include sexual orientation and gender identity.
Enforcement
HHS is in the process of revising regulations that apply to Section 1557. The current regulations were criticised for being inconsistent or duplicative with long-standing provisions under civil rights statutes cited in Section 1557, as well as for applying legal theories not supported by statutory authority or official policy of the United States government under these same civil rights laws.
The proposed regulations would clarify how the Department will enforce nondiscrimination protections provided by the PPACA, primarily through delegating enforcement under Section 1557 to the Director of the Office for Civil Rights. Furthermore, recipients of federal financial assistance could notify HHS if they believe certain provisions in Section 1557 Regulation contravene federal conscience or religious freedom laws as applied to them.
