Pandemic and Political Shifts in Section 1557 of the Affordable Care Act

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As part of the Affordable Care Act (ACA), Section 1557 is a multilayered approach to prohibit discrimination based on color, national origin, sex, age, and disability in health programs or “activities that receive federal financial assistance or are administered by an executive agency or an entity established under Title 1 of the Affordable Care Act.” 

It prohibits discrimination in both the provision of healthcare as well as insurance coverage. Since the ACA became effective in 2010, violations of Section 1557 are initially investigated by the Office of Civil Rights (OCR). Section 1557 imposes several requirements to prevent discrimination in employee health benefits on any basis covered under the rules.

Since it was implemented, the ACA has been subjected to litigation, and various parts of it have ebbed, flowed, or completely gone away. Depending on the presidential administration, who is appointed at OCR, or other enforcement agencies, the nature of enforcement can differ substantially. 

Long-haul COVID and Section 1557

As a nation, we remain extremely busy trying to address emergent COVID cases. Not as much attention has been paid in the media to those who have “long-haul” or ongoing symptoms from COVID and face potential workplace or insurance discrimination.

In July 2021, HHS through the OCR and the Department of Justice issued joint guidance indicating that long-haul COVID could be considered a disability under the Americans with Disabilities Act, Section 504 of the Rehab Act, and Section 1557. It can be assumed that this guidance may also be utilized by the EEOC in later determinations regarding disability issues filed with that agency.

The guidance lists a significant number of symptoms that can indicate long-haul COVID ranging from tiredness, muscle pain, to loss of taste or smell, and notes that if any individual symptom or combination of symptoms substantially limits one or more major life activities then the ADA will come into play. 

In assessing long-haul COVID and the applicability of anti-discrimination rules, this guidance focuses more on permanent organ damage such as lung damage, kidney damage, or neurological issues than what may be shorter-term symptoms. However, it notes that a mental health condition could also be caused by COVID and then would be ADA covered. Under 1557 health plans would not be able to discriminate against this condition.

The guidance goes on to note that like with any other ADA, 1557, or 504 claims “individualized assessment” will be necessary as long COVID, or other symptomology, is not always a disability. 

Gender discrimination issues

Under the Trump administration, the applicability of Section 1557 was narrowed, particularly in relation to non-discrimination on the basis of gender identity and sexual orientation. This led to a significant number of lawsuits challenging various issues including whether benefit plans should cover gender identity treatment and whether that was mental health and counseling or gender reassignment surgery. 

Under the Biden administration, a number of new steps have been taken including announcements that HHS and OCR are now including gender identity and sexual orientation as part of its enforcement plan for Section 1557 and the amendment expands on some prior Obama-era policies utilized. There have also been announcements that additional rulemaking will occur in relation to these issues. Note that some of the various pieces of litigation are on hold while others remain active as the scope of this rule and OCR’s enforcement agenda are clarified. 

The Big Picture

The HHS, OCR, and DOJ guidance is only a few months old, and the regulations regarding gender identity and sexual orientation have not been issued yet. In the meantime, employers should continue to:

  • Review, and as needed update, existing ADA/ADAAA policies and apply those carefully and consistently. While an individualized assessment is required in any ADA issue, consistency in rules and application are also important. 
  • Assess health plan changes and covered procedures with the new guidance in mind.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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