Final Rule Issued on Nondiscrimination in Health Programs and Activities

1.5 minute read

The U.S. Department of Health and Human Services’ (HHS) Office of Civil Rights (OCR) issued a final rule under Section 1557 of the Affordable Care Act. It prohibits discrimination based on color, race, sex, age, national origin, or disability in certain health programs and activities. The final rule will be published on May 6, 2024, taking effect 60 days later with varying effective dates for certain provisions.

Background

The OCR's rules for Section 1557 have faced lawsuits on health program discrimination and the scope of sex discrimination, excluding gender identity and pregnancy termination in 2020 regulations.

2024 Final Rule Highlights

The final rule expands the scope of prior 2020 regulations by providing that:

• Health insurance issuers are covered under section 1557 and it applies to all HHS-administered health programs and activities;
• Sex discrimination protections include discrimination on the basis of sexual orientation and gender identity, as well as sex stereotypes, sex characteristics, and pregnancy or related conditions; and
• Any health programs and activities provided through telehealth services are subject to nondiscrimination requirements.

Also, entities covered by the file rule are required to:

• Implement and train staff on policies and procedures to ensure final rule compliance;
• Notify individuals that language assistance services and auxiliary aids are available if needed; and
• Take steps to identify and mitigate discrimination when they use patient care decision support tools.

Action Steps

The final rule is likely to become the subject of more lawsuits. Plan administrators and issuers should monitor all legal developments in consultation with benefits counsel and work closely with their benefits advisors in complying with their Section 1557 obligations. The latest updates can be found on the OCR Section 1557 webpage. Download the bulletin for more details.