HHS Proposes Changes to ACA Nondiscrimination Rule
August 03, 2022
The Department of Health and Human Services (HHS) has issued a proposed rule implementing Section 1557 of the Patient Protection and Affordable Care Act (ACA) that prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in certain health programs and activities. Section 1557 is the ACA’s primary nondiscrimination provision and portions of the provision went into effect the day the ACA was signed. The HHS issued implementing regulations in 2016, which were challenged in court. Under the Trump administration, a new rule was issued in June 2020 that eliminated major provision of the 2016 rule and limited the scope of Section 1557. In the newly-issued proposed rule, the HHS would reverse the 2020 rule, and in some cases, expand the 2016 rule. The HHS noted that the proposed rule affirms the protections against discrimination on the basis of sex, including sexual orientation and gender identity, and reiterates protections from discrimination for seeking reproductive health care services.
Specifically, the proposed rule would:
- reinstate the scope of Section 1557 to cover HHS’ health programs and activities.
- clarify the application of Section 1557 nondiscrimination requirements to health insurance issuers that receive federal financial assistance.
- align regulatory requirements with federal court opinions to prohibit discrimination on the basis of sex including sexual orientation and gender identity.
- make clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination.”
- ensure requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures.
- require 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.
- require 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 prohibit discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities.
- clarify 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.
- interpret Medicare Part B as federal financial assistance.
- refine and strengthen the process for raising conscience and religious freedom objections.