Summary of HHS's Final Rule on Nondiscrimination in Health Programs and Activities

On May 18, 2016, the Department of Health and Human Services (HHS) published a final rule to implement Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination in health coverage and care based on race, color, national origin, age, disability, and sex. These provisions incorporate existing federal non-discrimination law and policy and also contain some new protections.  Key provisions include:

• Extending protections against sex discrimination to health coverage and care for the first time and including gender identity discrimination within the definition of sex discrimination;
• Codifying long-standing guidance regarding meaningful access for individuals with Limited English Proficiency, including the provision of free, accurate, and timely language assistance services;  
• Incorporating existing law that requires reasonable modifications, effective communication, and readily accessible buildings and information technology to avoid disability-based discrimination; and
• Prohibiting discriminatory health insurance benefit designs and including specific coverage protections for transgender individuals.

The final rule does not:

• Resolve whether Section 1557’s prohibition on sex discrimination extends to discrimination based on sexual orientation alone, although HHS notes that such discrimination is prohibited under Section 1557 when it is based on gender stereotypes; or
• Set specific accessibility standards for medical equipment for people with disabilities, pending action by the U.S. Access Board.

HHS emphasizes Section 1557’s importance in achieving the ACA’s goals of expanding access to health care and insurance, noting that discrimination within these areas can contribute to poor health outcomes or coverage, increase health disparities among underserved communities, and negatively impact the distribution of health care resources. The final rule is effective on July 18, 2016, except for provisions that require changes to health insurance plan benefit design, which will take effect in the first plan year beginning on or after January 1, 2017.