The U.S. Department of Health and Human Services (HHS) issued a Final Rule in June 2020 that revised the 2016 rules for implementing Section 1557 of the Affordable Care Act (ACA). This Section prohibits discrimination on the grounds of race, color, national origin, sex, age, or disability in certain health programs or activities. The 2020 Final Rule made several significant changes to the way Section 1557 is implemented and enforced. In this article, we explore activities that would be considered permissible under Section 1557 and the 2020 Final Rule.
Understanding the Changes
The 2020 Final Rule notably eliminates the 2016 Rule’s definition of discrimination “on the basis of sex” to include gender identity and termination of pregnancy. Under the 2020 Final Rule, the term ‘on the basis of sex’ aligns more closely with the biological sex definition as determined by genetics and biology. However, it should be noted that as of my knowledge cutoff in September 2021, there has been ongoing legal battles on this specific issue, and the current status may have changed.
It is important to note that the 2020 Final Rule does not include a standalone prohibition on discrimination based on sex stereotyping, unlike the 2016 Rule. However, sex stereotyping may still be considered a form of sex discrimination under Title IX, which is incorporated by reference into Section 1557.
Permissible Actions Under Section 1557 and the 2020 Final Rule
- Language Assistance: Under the 2020 Final Rule, covered entities are not required to provide notices of nondiscrimination, taglines in non-English languages, or a language assistance services notice. However, it is still permissible, and in some cases required, to offer these resources. The 2020 rule maintains protections for individuals with limited English proficiency under Title VI of the Civil Rights Act.
- Exclusions Based on Sex: Exclusions or limitations by a covered entity based on an individual’s sex, as defined by the 2020 Final Rule, are permissible, provided that they are not used as a pretext for discrimination. For example, an insurer could offer a health plan that excludes coverage for ovarian cancer screenings for male members, as this is not applicable to them based on their biological sex.
- Religious Exemptions: The 2020 Final Rule does not include a religious exemption. However, it does state that the rule does not invalidate or preempt the rights, remedies, procedures, or legal standards available to religious individuals or organizations under any other law. This means that actions that fall under existing religious exemptions in other federal discrimination laws may still be considered permissible under Section 1557.
- Cost-sharing Variances: The 2020 Final Rule eliminates the 2016 Rule’s prohibition on “categorical coverage exclusions or limitations for all health services related to gender transition.” Therefore, health insurance providers may apply cost-sharing or benefit design variances in relation to services related to gender transition, as long as it’s not discriminating based on the individual’s transgender status itself.
Understanding the permissible actions under Section 1557 and the 2020 Final Rule is essential for healthcare providers, insurance companies, and patients alike. While the 2020 Final Rule made significant changes to the interpretation of Section 1557, it continues to uphold the fundamental principle of non-discrimination in healthcare. As litigation continues and societal understandings evolve, it is crucial to stay informed about the current and future interpretations of these laws.