HHS Announces Changes in Implementing Anti-Discrimination Rule

The U.S. Department of Health and Human Services (HHS) is changing how it implements Section 1557 of the Affordable Care Act (ACA). The federal final rule applies to health plans, insurers, hospitals, doctors, and other medical providers that receive HHS funding.

Effective Aug. 18, 2020, changes to the 2016 version of the Section 1557 rule are:

  • Elimination of the requirement to issue anti-discrimination notices and taglines on all significant documents;
  • Elimination of the requirement to designate a responsible employee and grievance procedures; and
  • No longer prohibiting the exclusion of coverage of certain gender transition services in group health benefit plans

Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.

Eliminating Anti-discrimination Notices and Taglines on all Significant Communications
A new rule eliminates a 2016 mandate that required covered entities to distribute non-discrimination notices and “taglines” translation notices in at least 15 languages in all “significant communications” to patients and customers. The regulations of the underlying statutes referred to in Section 1557 (Title VI, Section 504, Title IX, and the Age Act) have long mandated that covered entities provide a notice of nondiscrimination. This final rule maintains that requirement.

Moreover, it continues to require covered entities to provide taglines whenever such taglines are necessary to ensure meaningful access by LEP individuals to a covered program or activity. It removes only the requirement that all significant communications contain taglines.

No Longer Prohibiting Excluding Coverage of Gender Transition Services
HHS noted that the final rule makes no changes to what has been the status quo since December 2016, when the Department was enjoined from enforcing gender identity provisions of the 2016 Rule; such provisions have since been vacated by a court.

For purposes of enforcing Section 1557, HHS will return to the federal government’s longstanding interpretation of the word “sex” in the statute. The Section 1557 statute does not explicitly prohibit discrimination on the basis of sexual orientation or gender identity or define “discrimination on the basis of sex” to include such categories.

Recent SCOTUS Ruling Regarding LGBT Employees
The following ruling applies to Title VII employers (non-governmental, 15 or more employees, excluding Native American tribal plans):

Shortly after the publication of the new Section 1557 rule, the U.S. Supreme Court issued its ruling in BOSTOCK v. CLAYTON COUNTY, GEORGIA on June 15, 2020, and held that an employer that fires an individual merely for being gay or transgender violates Title VII. In light of such ruling, employers should consult their employee benefits attorney regarding any exclusion of gender transition and similar services in their group health benefit plans.