Section 1557 of the Affordable Care Act Notice of Proposed Rulemaking What is Section 1557 and when did it take effect? Section 1557 is the nondiscrimination provision of the Affordable Care Act (ACA). The law prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs and activities that receive federal financial assistance from the federal government or are administered by an Executive agency or any entity established under Title I of the ACA. Section 1557 has been in effect since its enactment in 2010. In what ways does Section 1557 protect consumers? Section 1557 makes it unlawful for any health care provider, such as a hospital or doctor, that receives funding from the federal government to refuse to treat an individual – or to otherwise discriminate against the individual – based on the individual’s race, color, national origin, sex, age or disability. Section 1557 imposes similar requirements on insurers that get federal funding; they are barred, among other things, from excluding or adversely treating an individual on any of these prohibited bases. Under the proposed rule, Section 1557 also applies to the Health Insurance Marketplace and health programs administered by the Department of Health and Human Services (HHS). How is the proposed rule under Section 1557 different from rules under the other civil rights laws the Office for Civil Rights already enforces? The proposed rule combines and harmonizes existing, well-established federal civil rights laws and clarifies the standards HHS would apply in implementing Section 1557 of the Affordable Care Act, which says that individuals cannot be denied access to health care or health coverage or otherwise discriminated against because of their race, color, national origin, sex, age, or disability. Building on long-standing and familiar civil rights principles, the proposed rule takes important steps forward. Section 1557 is the first federal civil rights law to prohibit discrimination on the basis of sex in health care. It extends nondiscrimination protections to individuals enrolled in coverage through the Health Insurance Marketplaces and certain other health coverage plans. And it holds HHS’s health programs accountable under the standards of the rule. The proposed rule provides consumers with information about their rights under the law and clarity to covered entities about their obligations. Is Section 1557 currently being enforced? Section 1557 has been effective since the enactment of the Affordable Care Act in 2010. Since that time, the Office for Civil Rights has been accepting and investigating discrimination complaints under Section 1557. What can I do if I believe my civil rights under Section 1557 have been violated? If you feel that you have been subject to discrimination in health care or health coverage, you may file a complaint of discrimination under Section 1557. Please visit the Office for Civil Rights’ (OCR) website at www.hhs.gov/ocr to find the complaint package, or call OCR’s toll free number at (800) 368-1019 or (800) 537-7697 (TDD) to speak with someone who can answer your questions and guide you through the process. OCR’s complaint forms are available in a variety of languages. Should you need assistance in completing your complaint form or if you need the complaint form in an alternate format, you can call our toll-free number at (800) 368-1019 or (800) 537-7697 (TDD) for assistance. Individuals can also file lawsuits under Section 1557. Why is the Office for Civil Rights (OCR) proposing a rule addressing Section 1557? OCR is proposing this rule to educate consumers about their rights and to help covered entities understand their legal obligations under Section 1557. The proposed rule builds on the standards of the four federal civil rights laws referenced in Section 1557 and their implementing regulations: Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, and the Age Discrimination Act of 1975. In addition, the proposed rule provides new standards that apply to sex discrimination in health care and establishes standards that apply to the Marketplaces and health programs administered by HHS. Who does the proposed rule apply to? The proposed rule applies to every health program or activity that receives HHS funding, every health program or activity administered by HHS, such as the Indian Health Service or the Medicare program, and every health program or activity administered by an entity created by Title I of the ACA. Examples of covered entities include hospitals, health clinics, health insurance programs, state Medicaid agencies, community health centers, physician’s practices, home health care agencies, and the Health Insurance Marketplaces. While the proposed rule applies only to HHS and the health programs and activities it funds, the Section 1557 statute applies more broadly to health programs and activities that receive federal financial assistance from any Executive agency. Each agency has enforcement authority over the health programs and activities it funds; HHS encourages other agencies to adopt the standards in this proposed rule in their own enforcement of Section 1557. Does the proposed rule apply to the Marketplaces? Yes, both the Federally-facilitated Marketplaces and the State-based Marketplaces are covered by Section 1557. How are covered entities supposed to let consumers know about their rights? Consistent with the requirements under existing civil rights laws, HHS is proposing to require all covered entities to post a notice of consumer civil rights; covered entities with 15 or more employees would also be required to have a civil rights grievance procedure and an employee designated to coordinate their compliance efforts. Under a new requirement, covered entities would be required to post information telling consumers with disabilities and consumers with limited English proficiency (LEP) about the right to receive communication assistance, and to post taglines in the top 15 languages spoken by individuals with LEP nationally, advising consumers of the availability of free language assistance services. To minimize burden on covered entities, the Office for Civil Rights (OCR) has prepared a model notice that covered entities can use if they choose to do so; they are free to create their own notices if they wish. OCR also plans to translate the model notice into the top 15 languages spoken by individuals with LEP nationally and make those translated notices available to covered entities should they wish to post translated notices. In addition, OCR plans to provide the taglines, in the top 15 languages spoken by individuals with LEP nationally, that covered entities are required to post. What does the proposed rule require for individuals with limited English proficiency (LEP)? The proposed rule adopts the longstanding Title VI principle that covered entities must take reasonable steps to provide meaningful access to individuals with LEP. The Title VI standards incorporated into the proposed rule are flexible, taking into account factors such as the nature and importance of the communication, and, as relevant, the frequency with which the covered entity encounters the language spoken by the individual, the resources available to the covered entity, and other considerations. What does the proposed rule require concerning individuals with disabilities? The proposed rule is consistent with existing requirements under the Americans with Disabilities Act and Section 504. As such, the proposed rule requires effective communication, including through the provision of auxiliary aids and services; establishes standards for accessibility of buildings and facilities; and requires that programs provided through electronic and information technology be accessible, unless the entity can show undue financial and administrative burdens or a fundamental alteration in the nature of the program or activity. Covered entities must also make reasonable modifications to their policies, procedures, and practices to provide individuals with a disability access to a covered entity’s programs and services, unless the entity can show that doing so would fundamentally alter the programs or services. What types of discrimination constitute discrimination on the basis of sex? Under the proposed rule, sex discrimination includes, but is not limited to, discrimination on the basis of pregnancy, sex stereotyping, and gender identity. More than 25 years ago, the U.S. Supreme Court held that discrimination based on stereotypical notions of gender, including what is appropriate behavior, appearance or mannerisms, is unlawful sex discrimination. The proposed rule’s coverage of gender identity discrimination is based on that decision and subsequent case law, as well as on federal agency practices. The proposed rule makes clear HHS’s commitment, as a matter of policy, to banning discrimination based on sexual orientation and requests comment on how a final rule can incorporate the most robust set of protections against discrimination supported by the courts on an ongoing basis. Why did the Office for Civil Rights (OCR) choose to include provisions that specifically address equal program access on the basis of sex in health programs and activities? Many of the provisions of the proposed rule, including those addressing the obligation of covered entities to provide meaningful access to individuals with Limited English Proficiency and effective communication to individuals with disabilities, incorporate long-standing principles of civil rights law and thus will be familiar to entities governed by the proposed rule. The proposed rule provides additional guidance in areas in which application of these principles may not be as familiar. Because Section 1557 is the first federal civil rights law that bars sex discrimination in federally funded health care, the proposed rule contains provisions designed to educate consumers and covered entities specifically about sex discrimination in the health care context. OCR is also providing additional information about the application of nondiscrimination principles to health insurance and other health coverage. What does the provision that specifically addresses equal program access on the basis of sex in health programs and activities require? The proposed provision requires covered entities to provide individuals equal access to health programs and activities without discrimination on the basis of sex and to treat individuals consistent with their gender identity. This provision applies to all health programs and activities, including access to facilities, administered by the covered entity. This proposed approach is consistent with recent guidance and enforcement actions taken by the Department of Education, the Department of Justice, and the Equal Employment Opportunity Commission. What does the provision regarding nondiscrimination in health insurance and other health coverage prohibit? The proposed provision prohibits covered entities from discriminating on the basis of race, color, national origin, sex, age or disability when providing or administering health insurance or other health coverage. This prohibition applies to all health insurance issuers that are recipients of federal financial assistance, such as premium tax credits and cost sharing reductions associated with coverage offered through the Marketplaces, or Medicare Part D payments. Under the proposed provision, a covered entity cannot: deny, cancel, limit, or refuse to issue or renew an insurance policy; deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions; or employ marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability. The proposed rule does not require plans to cover any particular benefit or service, but a covered entity cannot have a coverage policy that operates in a discriminatory manner. The proposed provision also prohibits a covered entity from denying any claim, or imposing additional cost sharing or other limitations, on any health care services that are ordinarily or exclusively available to individuals of one gender, based on the fact that an individual’s sex assigned at birth, gender identity, or recorded gender is different than the one to which the health care services are ordinarily or exclusively available. Under the proposed rule, explicit categorical exclusions in coverage for all health care services related to gender transition are facially discriminatory. Additionally, when providing or administering health insurance or other health coverage, a covered entity cannot deny or limit coverage, or deny a claim for any health care services related to gender transition if such denial or limitation results in discrimination against a transgender individual. Does the proposed rule cover employment discrimination? The proposed rule provides limited coverage of employment discrimination. The rule applies to the provision of employee health benefits by an employer that receives federal financial assistance and is principally engaged in health care, such as a hospital or nursing home. The rule also applies to employee health benefits offered by an entity that is not principally engaged in health care if the entity receives federal funding that flows to the employee health benefit program itself or to another health program. In the latter situation, however, only the employees who work for the health program would be covered. The proposed rule’s treatment of employment discrimination under Section 1557 does not alter the protections under Title VII of the Civil Rights Act or the other civil rights statutes referenced in Section 1557. Does the proposed rule include a religious exemption? The proposed rule requests comment on whether Section 1557 should include a specific exemption for religious organizations and, if so, what the scope of an exemption would be. Nothing in the rule would affect the application of existing protections for religious beliefs and practices, such as provider conscience laws, the Religious Freedom Restoration Act, provisions in the Affordable Care Act related to abortion services, or regulations issued under the Affordable Care Act with regard to preventive health services. Can I review the proposed regulation? Yes. You can review a copy of the proposed regulation at https://www.federalregister.gov/public-inspection, or find a link on OCR’s website at http://www.hhs.gov/ocr. Can I get a copy of the regulation in large print, Braille, or some other alternative format? Yes. To get a copy in an alternative format, please email the Office for Civil Rights at email@example.com and provide the specifications for the format or call our toll-free number at (800) 368-1019 or (800) 537-7697 (TDD) for assistance. When does the public comment period for this Notice of Proposed Rulemaking close and how can I comment on the proposed regulation? The public comment period for this Notice of Proposed Rulemaking closes on November 9, 2015. You can submit comments, identified by RIN 0945-AA02 (or Docket ID No. 2015-22043), by any one of the following methods: Federal eRulemaking Portal: You may submit electronic comments at http://www.regulations.gov. Follow the instructions for submitting electronic comments. Attachments should be in Microsoft Word or Excel; however, the Office for Civil Rights prefers they be submitted using Microsoft Word. Regular, Express or Overnight U.S. Mail: You may mail written comments (one original and two copies) to the following address only: U.S. Department of Health and Human Services, Office for Civil Rights, Attention: 1557 NPRM (RIN 0945-AA02), Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue, SW., Washington, DC 20201. Mailed comments may be subject to delivery delays due to security procedures. Please allow sufficient time for mailed comments to be timely received in the event of delivery delays. Hand Delivery or Courier: If you prefer, you may deliver (by hand or courier) your written comments (one original and two copies) to the following address only: Office for Civil Rights, Attention: 1557 NPRM (RIN 0945-AA02), Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue, SW., Washington, DC 20201. (Because access to the interior of the Hubert H. Humphrey Building is not readily available to persons without federal government identification, commenters are encouraged to leave their comments in the mail drop slots located in the main lobby of the building.) Can I review and comment on the Department’s Initial Regulatory Assessment regarding this Notice of Proposed Rulemaking? Yes. You can review a copy of the Department’s Initial Regulatory Assessment on this Notice of Proposed Rulemaking at https://www.federalregister.gov/public-inspection, or on the Office for Civil Rights’ website at http://www.hhs.gov/ocr. You can comment on this Initial Regulatory Assessment through any of the options noted above.