Regulatory Initiatives

Section 1557 of the Affordable Care Act (ACA) Notice of Proposed Rulemaking (NPRM)

The U.S. Department of Health and Human Services (HHS) has announced a proposed rule implementing Section 1557 of the Affordable Care Act (ACA) which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in covered health programs and activities. This rule restores and strengthens civil rights for patients and consumers in a range of health programs and activities, including those provided by HHS. The current Section 1557 implementing regulation limits its scope to cover less programs and services limiting nondiscrimination protections, and this NPRM proposed to address those limitations. This proposed rule importantly solidifies protections against discrimination on the basis of sex, including sexual orientation and gender identity, consistent with the U.S. Supreme Court’s holding in Bostock v. Clayton County.

Strengthening this rule is a significant achievement for the Biden-Harris Administration and promotes gender and health equity for communities of color, women, LGBTQI+ individuals, people with disabilities, persons with limited English proficiency (LEP), and older people.

The Section 1557 Notice of Proposed Rulemaking (NPRM) seeks to address gaps identified in prior regulations in order to advance protections under this rule. It:

Reinstates the scope of Section 1557 to cover HHS’ health programs and activities.
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.
Makes clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination.”
Ensures requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures.
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.
Requires covered entities to provide a notice of nondiscrimination along with a notice of the availability of language assistance services and auxiliary aids and services.
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 via telehealth, which must be accessible to LEP individuals and individuals with disabilities.
Interprets Medicare Part B as federal financial assistance.
Refines and strengthens the process for raising conscience and religious freedom objections.

While the Department is undertaking this rulemaking, both the statute and the current regulation are in effect. If you believe that you or another party has been discriminated against on the basis of race, color, national origin, sex, age, or disability, visit the OCR complaint portal to file a complaint online.

HHS encourages all stakeholders, including patients and their families, health plans, health care providers, health care professional associations, consumer advocates, and government entities, to submit comments through regulations.gov.

Public comments on the NPRM are due 60 days after publication of the NPRM in the Federal Register. The Department will also be conducting a Tribal consultation meeting on August 31, 2022 from 2:00 p.m. to 4:00 p.m. Eastern Daylight Time. To participate, you must register in advance at https://www.zoomgov.com/meeting/register/vJIsfu-rqzksEl2T8gUp_lDrWBqkU0223CY.

The NPRM may be viewed or downloaded at: https://www.federalregister.gov/public-inspection/2022-16217/nondiscrimination-in-health-programs-and-activities