Section 1557 of the Affordable Care Act prohibits discrimination in healthcare based on a number of characteristics including race, color, national origin, sex, age, and disability. On April 26, 2024, the Department of Health and Human Services (HHS) issued a Final Rule that according to HHS provides clarity on Section 1557 with a goal of ensuring nondiscriminatory access to care for all, including women, people with disabilities, LGBTQI+ people, people with limited English proficiency (LEP), people of color, and people regardless of age. The first Section 1557 final rule was published in 2016 followed by a second final rule in 2020 that rescinded large sections of the 2016 rule. The 2024 Final Rule restores those provisions and enhances them.
At the outset, the 2024 Final Rule reinstates application of Section 1557 to all HHS health programs and activities and state and federally facilitated exchanges. The 2020 rule narrowed the reach by applying only to specific programs and activities that receive federal funding and eliminated application to all HHS-administered programs. The 2024 Rule expands the application to include, for example, programs administered by the Indian Health Service, Centers for Medicare & Medicaid Services, and the National Institutes of Health and brings health insurers back within the purview of Section 1557.
The 2016 Final Rule defined discrimination “on the basis of sex” to include “pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity,” whereas the 2020 Rule limited sex discrimination to the gender assigned at birth. Following the 2020 Final Rule, the U.S. Supreme Court held in Bostock v. Clayton County, Georgia (2020) 140 S.Ct. 1731 that an employer who fires an individual merely for being gay or transgender violates Title VII for engaging in sex discrimination because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The 2024 Final Rule affirms that sex discrimination includes discrimination based on sexual orientation and gender identity consistent with the Bostock decision.
Other key provisions of the 2024 Final Rule include:
- Covered entities must not discriminate against any individual through the use of patient care decision support tools, and Covered entities must take reasonable steps to mitigate discrimination once made aware of the potential for discrimination resulting from use of these tools.
- Covered entities must not discriminate in their delivery of health services provided through telehealth. This includes ensuring that such services are accessible to individuals with disabilities and LEP.
- Covered entities must provide notice in prominent locations that language assistance services and auxiliary aids are available.
- Sex discrimination includes discrimination on the basis of sex stereotypes; sex characteristics, including intersex traits; and pregnancy or related conditions; sexual orientation; and gender identity.
- Covered entities must implement policies and procedures to ensure compliance with the rule.
- Covered entities must begin training its relevant employees no later than 30 days after a covered entity implements its policies and procedures.
- Covered entities with fifteen or more employees must designate at least one employee to serve as a Coordinator to integrate efforts to comply with and carry out responsibilities under section 1557.
The 2024 Final Rule will take effect on July 5, 2024.
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