HHS’s Proposed Changes to Non-Discrimination Regulations Under ACA Section 1557
|Table 1: Key Proposed Changes to HHS Regulations Implementing ACA § 1557|
|Topic||Current Regulation||Proposed Change|
|Equal program access on the basis of sex1||Defines sex discrimination to include discrimination on the basis of gender identity, sex stereotyping, pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions.||Remove entire provision.|
|Abortion and religious exemptions2||Provides that compliance with § 1557’s prohibition of discrimination based on sex is not required if doing so would violate existing abortion and religious exemption laws. Does not include Title IX’s blanket abortion and religious exemptions applied to educational institutions.||Add Title IX’s blanket abortion and religious exemptions and provide that any § 1557 regulatory requirement will not be imposed if it would violate, depart from, or contradict definitions, exemptions, affirmative rights, or protections provided by existing and future abortion and religious exemption laws.3|
|Discrimination in Health Coverage|
|Nondiscrimination in health-related insurance and other health-related coverage4||Prohibits covered entities from taking the following actions on the basis of race, color, national origin, sex, age, or disability:
Permits insurers to apply medical necessity rules when determining covered benefits.
|Remove entire provision.|
|Coverage protections for transgender individuals5||Requires that covered entities treat individuals consistent with their gender identity, except that entities are prohibited from denying or limiting health services and imposing additional cost-sharing on services that are ordinarily or exclusively available to individuals of one sex or gender based on the fact that the individual’s sex assigned at birth, gender identity, or gender in a medical or health insurance plan record differs from the one to which such health services are ordinarily or exclusively available.||Remove entire provision.|
|Access to gender transition services6||Prohibits an insurance plan from categorically or automatically excluding or limiting coverage for all health services related to gender transition or otherwise denying or limiting coverage or denying a claim for specific health services related to gender transition if such a policy results in discrimination against the individual seeking services.||Remove entire provision.|
|Meaningful access for individuals with limited English proficiency (LEP)7||Requires covered entities to take reasonable steps to provide meaningful access to each individual with LEP eligible to be served or likely to be encountered.
When assessing an entity’s compliance, OCR will take into account and give substantial weight to the nature and importance of the health program or activity and the communication at issue to the individual with LEP. OCR also will consider other relevant factors, including whether the entity has an effective written language access plan.
Requires covered entities to offer a qualified interpreter when oral interpretation is a reasonable step to provide meaningful access and to use a qualified translator when translating written content.
|Require covered entities to take reasonable steps to ensure meaningful access by LEP individuals (remove reference to each individual).
When evaluating an entity’s compliance, OCR may assess how the entity balances the number or proportion of LEP individuals eligible to be served or likely to be encountered; the frequency with which LEP individuals come in contact with the entity’s health program or activity; the nature and importance of the entity’s health program or activity; and the resources available to the entity and costs.
The entity’s individualized assessment of the above factors will determine whether language assistance services are required to provide meaningful access.
|Remote interpreting services||Includes standards for video remote interpreting services.||Remove video remote interpreting standards and require only audio remote interpreting.|
|Notices, including taglines8||Requires covered entities to provide non-discrimination notices (described below) in English and include taglines in the top 15 languages spoken by individuals with LEP in the state. Notices must indicate the availability of language assistance services.||Remove entire provision.9|
|Effective communication – auxiliary aids and services10||Requires covered entities to provide appropriate auxiliary aids and services to people with impaired sensory, manual, or speaking skills, where necessary to afford an equal opportunity to benefit from the health program or activity.||Seeks comment on whether to exempt entities with less than 15 employees, as permitted under the Section 504 regulation, but allow the OCR Director to apply this provision if it would not significantly impair the entity’s ability to provide aids and services.|
|Building construction and architectural standards11||Adopts the 2010 ADA Standards for Accessible Design for new construction or alternation of facilities of covered entities that receive federal funding and state-based Marketplaces.||Seeks comment on the appropriateness of applying the 2010 ADA standards definition of public building or facility to all covered entities, especially regarding multi-story building elevators and TTY standards.|
|Reasonable modifications12||Requires covered entities to make reasonable modifications in policies, practices, and procedures to avoid disability-based discrimination, unless doing so would fundamentally alter the nature of the health program or activity.||Seeks comment on whether to retain this language or substitute with the Section 504 language that provides “shall make reasonable accommodations to known physical or mental limitations of otherwise qualified people with disabilities.”
Also seeks comment on whether to include exemption for undue hardship
|Notice and Enforcement|
|Designation of responsible employee and adoption of grievance procedures13||Requires covered entities that employ at least 15 people to adopt a grievance procedure and designate at least one employee to coordinate § 1557 responsibilities.||Remove entire provision.|
|Notice requirement14||Requires covered entities to provide notice of their nondiscrimination policies in significant communications (such as handbooks and outreach publications), physical locations where the entity interacts with the public, and on their website homepage.
The notice must include the bases of discrimination prohibited under § 1557, the availability of free auxiliary aids and services and language assistance services, how to access those services, contact information for the employee responsible for § 1557 compliance, the entity’s grievance procedures, and OCR complaint procedures.
Includes sample notice, tagline, and grievance procedure.
Small-sized publications may include a shorter non-discrimination statement and taglines in the top 2 non-English languages spoken.
|Remove entire provision.15|
|Compensatory damages16||Provides that compensatory damages are available for violations of § 1557 in appropriate administrative and judicial actions brought under the regulations.||Remove entire provision.|
|Court access17||Provides that private individuals and entities can sue in federal court to challenge alleged violations of § 1557 by entities receiving federal financial assistance and state-based Marketplaces||Remove entire provision|
|Scope of Application|
|Covered entities18||Applies § 1557 regulations to health programs and activities that receive federal financial assistance from HHS, all health programs and activities administered by HHS, and state-based Marketplaces.
Defines health programs and activities to include all operations of an entity that is principally engaged in the provision or administration of health-related services or health-related insurance coverage.
|Apply § 1557 regulations to entities principally engaged in the business of providing health care that receive federal financial assistance, health programs and activities administered by HHS under Title I of the ACA (but not other HHS-administered health programs and activities), and state-based Marketplaces.
Apply § 1557 regulations to health insurance programs administered by entities that are not principally engaged in the business of providing health care only to the extent that those programs receive federal financial assistance. Would not apply to all operations of entities that are not principally engaged in the business of providing health care (as opposed to health insurance).
|Discrimination based on association19||Prohibits discrimination against an individual known or believed to have a relationship or association with someone else based on that person’s race, color, national origin, age, disability, or sex.||Remove entire provision.|
|Table 2: Key Proposed Changes to Other HHS Anti-Discrimination Regulations|
|Topic||Current Regulation||Proposed Change|
|Managed care contract requirements20||Prohibits Medicaid managed care entities from discriminating against individuals eligible to enroll or using any policy or practice that has the effect of discriminating on the basis of sexual orientation or gender identity.||Remove sexual orientation and gender identity as prohibited bases of discrimination.|
|Managed care – availability of services21||Requires state Medicaid programs to ensure that each Medicaid managed care entity participates in state efforts to promote service delivery in a culturally competent manner to all enrollees, regardless of gender, sexual orientation or gender identity.||Replace gender, sexual orientation or gender identity with sex.|
|Access and cultural conditions for state Medicaid program services22||Requires state Medicaid programs to have methods to promote access and service delivery in a culturally competent manner to all beneficiaries, regardless of gender, sexual orientation or gender identity.||Replace gender, sexual orientation or gender identity with sex.|
|Program of All-Inclusive Care for the Elderly (PACE)23||Prohibits PACE organizations from discriminating against any participant in the delivery of PACE services based on sexual orientation.
Provides that each PACE participant has the right to not be discriminated against in the delivery of required PACE services based on sexual orientation.
|Remove sexual orientation as prohibited basis of discrimination.|
|Group and Individual Health Insurance|
|Group and individual health insurance markets – guaranteed availability of coverage24||Prohibits health insurance issuers from employing marketing practices or benefit designs that discriminate based on gender identity and sexual orientation.||Remove sexual orientation and gender identity as prohibited bases of discrimination.|
|Marketplace establishment standards25||Prohibits states and Marketplaces from discriminating based on gender identity and sexual orientation when establishing Marketplace standards and functions, eligibility determinations, enrollment periods, SHOP functions, QHP certification, and health plan quality improvement.||Remove sexual orientation and gender identity as prohibited bases of discrimination.|
|Federally-facilitated Marketplace standards of conduct26||Prohibits agents and brokers that assist with or facilitate enrollment of individuals or applying for premium tax credits and cost sharing reductions in qualified health plans (QHPs) through a federally-facilitated Marketplace from discriminating based on gender identity and sexual orientation.||Remove sexual orientation and gender identity as prohibited bases of discrimination.|
|QHP issuer participation standards27||Prohibits QHP issuers from discriminating based on gender identity and sexual orientation.||Remove sexual orientation and gender identity as prohibited bases of discrimination.|
|Direct enrollment in a Federally-facilitated Marketplace28||Prohibits QHP issuers from marketing or conduct that discriminates based on gender identity and sexual orientation.||Remove sexual orientation and gender identity as prohibited bases of discrimination.|
|Education programs or activities receiving federal financial assistance29||Not addressed in regulation. Contained in statute.||Add provision prohibiting covered entities from being required to perform or pay for an abortion.30|
|Education programs or activities receiving federal financial assistance31||Prohibits recipients of federal financial assistance from discriminating against any person in the application of any rules of appearance on the basis of sex when providing any aid, benefit or service to a student.||Remove provision prohibiting discrimination based on the application of rules of appearance.|