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Legislative and Regulatory Update | Healthcare Reform

Managing the ACA’s Nondiscrimination Provisions

Legislative and Regulatory Update | Healthcare Reform

Managing the ACA’s Nondiscrimination Provisions

The ACA prohibits discrimination in health programs or activities that receive federal financial assistance. Healthcare providers face the challenges of preventing language barriers that may impact certain patients based on race, as well as current litigation on gender identify.

The Office of Civil Rights offers resources that covered entities can use to comply with Section 1557.


Section 1557 is the nondiscrimination provision of the Affordable Care Act (ACA). It has been in effect since the ACA was passed in 2010, and the Office for Civil Rights (OCR) has been receiving and investigating complaints for several years. Only recently, however, did the Department of Health and Human Services (HHS) finally issue a rule implementing the provision.

Section 1557 prohibits discrimination based on race, color, national origin, sex, age, or disability in health programs or activities that receive federal financial assistance. Among other things, the final rule builds on prior civil rights regulations to prohibit sex discrimination―including that which is based on gender identity, a matter currently being litigated―to ensure physical accessibility and to provide appropriate auxiliary aids and services for individuals with disabilities, including vision or hearing impairments. Covered entities—including hospitals—must also take reasonable steps to provide meaningful access to persons with limited English proficiency (LEP), and they are encouraged to develop and implement a language access plan.

These provisions may sound familiar, but, as always, “the devil is in the details.” Some organizations are finding that updating their marketing pieces and websites, posting more signs about nondiscrimination, and adding short statements in non-English languages (LEP “tag lines”) to their printed materials presents challenges—especially because the requirements are cumulative with those of other civil rights laws that have been in force for years.

In addition, the Code of Federal Regulations language regarding notices and tag lines is complex and may be confusing to some readers. (See “Section 1557 Notice Requirement” in the list of resources below.) Fortunately, OCR has posted helpful materials that covered entities can use to comply with Section 1557. These include press releases, summaries of the rule, fact sheets on key provisions, frequently asked questions, sample notices of nondiscrimination, translations, and training materials.

See Resources

Among the pages of the OCR’s website are summaries of some enforcement actions in sex-discrimination cases. For example, an Arkansas hospital had a policy and practice that treated married individuals differently on the basis of sex. It automatically assigned male spouses as guarantors (financially responsible parties) when female spouses received medical services. But when male spouses received services, their female spouses would not automatically be assigned as guarantors. Following OCR’s investigation, the hospital changed its billing practices to ensure equal treatment regardless of the sex of the patient.

In another case, OCR received a complaint from a man who received transportation services for his doctors’ appointments from a private transportation service. The complainant alleged that multiple drivers harassed him because of his “feminine gender expression.” Following OCR’s investigation, the staff received training on how to use appropriate terminology and avoid sex stereotyping. Quality and safety measures were also implemented to prevent discriminatory treatment.

As mentioned earlier, some aspects of the Section 1557 rule are being litigated. In Franciscan Alliance, Inc. v. Burwell, the U.S. District Court for the Northern District of Texas issued a preliminary injunction against the regulation’s definition of “sex” as including gender identity. Also at issue was whether the regulation applies to the plaintiffs—a religious organization—because the text of the ACA incorporates the religious and abortion exemptions of Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.).

The court noted that Title IX defines “sex” to mean “the biological and anatomical differences between male and female” as determined at birth. Section 1557 incorporates this definition into the ACA, and because transgender is not included, the court issued a nationwide order stating that the government is “enjoined from enforcing the rule’s prohibition against discrimination on the basis of gender identity.” The court also enjoined the provisions regarding abortion because “the regulation likely violates the Religious Freedom Restoration Act” as applied to religious organizations.

Covered entities may, of course, choose not to discriminate on the basis of gender identity and may, if they wish, provide abortion services, but the Section 1557 rule does not prohibit discrimination on those bases. The trial court’s decision is being appealed, and more litigation will follow. In the meantime, the remaining provisions of the Section 1557 rule remain in force.


J. Stuart Showalter, JD, MFS, is a contributing editor for HFMA.

Resources:

The following are resources to assist in Section 1557 compliance efforts. 

Discussion Starters

Forum members: What do you think? Please share your thoughts in the comments section below.

  • What challenges has your organization encountered with Section 1557 compliance?
  • What strategies are you using to ensure compliance with Section 1557?

About the Author

J. Stuart Showalter

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