Nondiscrimination Requirements

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. The original rule was finalized in 2016.

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Human Services’ (HHS’) Office for Civil Rights (OCR) published a final rule (the 2020 Rule) on nondiscrimination which repealed or replaced many provisions of the 2016 rule. Of significance, this rule repealed the 2016 rule's expanded definition of "basis of sex" that included pregnancy termination, sex stereotyping, and gender identity. The 2020 rule continued to prohibit discrimination on the "basis of sex," but under the prior interpretation of the word "sex" (i.e., as defined by gender assignment at birth).

In May 2021, the Biden Administration announced the Office for Civil Rights (OCR) would interpret and enforce Section 1557 of the ACA and Title IX’s nondiscrimination requirements based on sex to include sexual orientation and gender identity. The update was made in light of the June 2020 U.S. Supreme Court’s decision in Bostock v. Clayton County and subsequent court decisions.

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 2020 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.

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.
• Provide accessible grievance procedures for individuals who believe they have been subjected to discrimination in their health care or health care coverage

The 2020 Rule also repealed provisions which required the inclusion of notices and taglines in at least fifteen languages with all "significant communications" to patients and customers.