Under Section 1557 of the Affordable Care Act (ACA), individuals may not be denied, cancelled, limited, or refused health coverage on the basis of race, color, national origin, sex, age, or disability. On June 19, 2020, the Department of Health and Human Services’ (HHS’) Office for Civil Rights (OCR) published a final rule (the 2020 Rule) on nondiscrimination in health programs and activities under Section 1557. This 2020 Rule replaces the original final rule from 2016, repealing or revising many key provisions.
The 2020 Rule applies to the part(s) of health programs or activities that receive federal financial assistance, and any program or activity under Title I of the ACA (i.e., Exchanges) or entities established under that Title. Under the new rule, Section 1557 generally does not apply to self-funded group health plans under ERISA or short-term limited duration plans because the entities offering the plans are typically not principally engaged in the business of providing health care, nor do they receive federal financial assistance.
The 2020 Rule is effective Aug. 18, 2020. In light of the June 2020 Supreme Court decision on Title VII, potential legal challenges, particularly regarding what discrimination “on the basis of sex” encompasses, could impact the enforceability of parts of the rule.
Key requirements affecting health plans and services include:
- Ensure physical access and/or appropriate communication technology to assist people with applicable disabilities
- Ensure meaningful access for people with limited-English proficiency (LEP) based on a “four-factor analysis” test that includes an assessment of the proportion of LEP individuals in the population being served, and the frequency with which they come in contact with the entity’s health program activity or service.
- Accessible grievance procedures for individuals who believe they have been subjected to discrimination in their health care or health care coverage
Repealed provisions from the original final rule, which are no longer required effective Aug. 18, 2020 include:
- Nondiscrimination protection for transgender individuals
- Inclusion of notices and taglines in at least fifteen languages with all “significant communications” to patients and customers