The Department of Health and Human Services (“HHS”) recently issued proposed implementation regulations under Section 1557 of the Affordable Care Act (“ACA”) (“Proposed Rule”), to both strengthen protections against discrimination in health care and to reverse the Trump administration’s regulations, which eliminated the general prohibition on discrimination based on gender identity, sex-stereotyping and specific health insurance coverage protections for transgender individuals (“2020 Rule”). Section 1557 of the ACA prohibits discrimination based on race, color, national origin, sex, age, or disability in connection with health care and is deemed as being the government’s most powerful tool to ensure nondiscriminatory access to health care. The following highlights some of the new requirements of which plan sponsors should be aware.
1) Broadens Section 1557’s Application
The proposed rule applies the same nondiscrimination standards to all of the health programs administered by HHS. The 2020 Rule narrowed the scope of Section 1557’s nondiscrimination prohibitions to specific activities that receive federal funding to the exclusion of all HHS-administered programs. The Proposed Rule also reinstates and strengthens the application of the nondiscrimination prohibitions to health insurance issuers that receive federal financial assistance, thereby providing a clear nondiscrimination standard for the health insurance industry.
2) Aligns Sex Discrimination Prohibitions with Court Decisions
The Proposed Rule clarifies that sex discrimination includes discrimination on the basis of sex stereotypes; sex characteristics, including intersex traits; and pregnancy or related conditions including pregnancy termination, thereby codifying protections against discrimination based upon sexual orientation and gender identity consistent with the U.S. Supreme Court’s holding in Bostock v. Clayton County, 140 S. Ct. 1731 (2020). After Bostock, HHS issued subsequent guidance Federal Register Notice (86 Fed. Reg. 27984 (May 10, 2021)) which stated that the agency would enforce Section 1557 consistent with the Bostock decision, which held that sex discrimination includes discrimination based on sexual orientation and gender identity. Accordingly, the Proposed Rule reversed the 2020 Rule’s elimination of protections against health insurer discrimination against HIV-positive and LGBTQ individuals.
3) Training Required for Covered Entities
The Proposed Rule implements a new requirement that recipients of federal financial assistance, State Exchanges, and entities administered by HHS (“covered entities”) develop and implement Section 1557 anti-discrimination policies and procedures to give staff clear guidance on the provision of language assistance services for limited English proficient (LEP) individuals, and effective communication and reasonable modifications to policies and procedures for people with disabilities. Additionally, covered entities will also be required to provide training on the new policies and procedures to improve Section 1557 compliance.
4) Care Related Language Assistance Notice
The Proposed Rule requires covered entities to provide notice of the availability of language assistance in connection with health services in at least 15 of the most common languages spoken by LEP persons of the relevant state or states, in alternate formats to accommodate individuals with disabilities who require auxiliary aids and services to ensure effective communication. The notices are required to be provided annually and upon request, prominently displayed in physical locations, and located in a conspicuous location on their websites.
5) Applicability of Section 1557 to Telehealth
The Proposed Rule specifically clarifies that the provision of health programs and activities through telehealth services is not exempt from complying with the Section 1557 nondiscrimination requirements. Instead, the guidance confirms that covered telehealth providers have an affirmative duty not to discriminate in their delivery of such services through telehealth and must ensure that services are accessible to individuals with disabilities and LEP persons. Disabled and LEP individuals must receive accommodating communications about the availability of telehealth services, the process for scheduling telehealth appointments (including the process for accessing on-demand unscheduled telehealth calls), and the telehealth appointment itself.
The comment period on the Proposed Rule will be open until October 3, 2022 (60 days from August 4, 2022). Comments may be submitted comments, identified by RIN 0945-AA17, electronically through https://www.regulations.gov, or by mail or via hand delivery or courier to the following address only: U.S. Department of Health and Human Services, Office for Civil Rights, Attention: 1557 NPRM (RIN 0945-AA17), Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue SW., Washington, DC 20201.