The U.S. Department of Health & Human Services ("HHS") recently issued a final rule that implements the nondiscrimination provisions under Section 1557 of the Affordable Care Act (the "Final Rule"). The Final Rule becomes effective July 18, 2016.

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health care programs and activities. The rule applies to the following entities ("Covered Providers"):

  • any health program or activity that receives funding from HHS (such as providers that accept Medicare or Medicaid);
  • any health program that HHS itself administers; and
  • Health Insurance Marketplaces and issuers that participate in those Marketplaces.

The main provisions of the Final Rule are summarized below.

Notice Requirement

The Final Rule requires a Covered Provider to post a Notice of Nondiscrimination within 90 days of the effective date of the Final Rule. The Notice must include the following information:

  1. the Covered Provider does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities;
  2. the Covered Provider provides appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, free of charge and in a timely manner, when such aids and services are necessary to ensure an equal opportunity to participate to individuals with disabilities;
  3. the Covered Provider provides language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner, when such services are necessary to provide meaningful access to individuals with limited English proficiency;
  4. how to obtain the aids and services described in (2) and (3) above;
  5. how to contact the employee responsible for compliance with the nondiscrimination rules;
  6. the availability of the grievance procedure and how to file a grievance; and
  7. how to file a discrimination complaint with the HHS Office of Civil Rights ("OCR").

The Notice must be posted:

  1. in significant publications and significant communications targeted to residents and members of the public, except for significant publications and significant communications that are small-sized, such as postcards and tri-fold brochures;
  2. in conspicuous physical locations where the entity interacts with the public; and
  3. in a conspicuous location on the Covered Provider's Web site accessible from the home page of the Covered Provider's Web site.

The Notice must include taglines in at least the top 15 languages spoken by individuals with limited English proficiency in Michigan. The taglines must inform individuals with limited English proficiency how to obtain language assistance services.

With regard to significant publications and significant communications that are "small-sized," such as postcards and tri-fold brochures, the Final Rule requires a Covered Provider to post an abbreviated Nondiscrimination Statement. The Statement must convey that the Covered Provider does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities. The Statement must also include taglines in at least the top two languages spoken by individuals with limited English proficiency in Michigan.

HHS has provided on its website sample Notice language, sample Statement language, and sample taglines translated into 64 different languages.

Protecting Individuals Against Sex Discrimination

The Final Rule provides that discrimination "on the basis of sex" includes discrimination based on pregnancy, termination of pregnancy (or recovery therefrom), childbirth or related medical conditions, sex stereotyping, and gender identity.

Under the Final Rule, individuals must be treated consistent with their gender identity. However, Covered Providers may not deny or limit treatment for any health services that are ordinarily available to individuals of one gender based on the fact that a person seeking such services identifies as belonging to another gender. For example, a Covered Provider may not deny an individual treatment for ovarian cancer based on the fact that the individual identifies as a transgender male.

The Final Rule does not explicitly address whether discrimination on the basis of an individual's sexual orientation is a form of sex discrimination under Section 1557. However, HHS explained in the preamble to the Final Rule that it supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments in this area.

Ensuring Accessibility for Individuals with Disabilities

Covered Providers must make reasonable modifications in policies, practices, and procedures to avoid disability-based discrimination, unless doing so would fundamentally alter the nature of the program or activity. The Final Rule also requires Covered Providers to ensure that communications with individuals with disabilities are as effective as communications with others. Covered Providers are required to provide appropriate auxiliary aids and services free of charge, such as qualified interpreters and information in alternate formats, where necessary for effective communication.

A summary of the Final Rule is posted on HHS's website.