Recently, the Department of Health and Human Services (HHS) published a final rule that reinforces anti-discrimination requirements under the Affordable Care Act (ACA). Section 1557 is the groundbreaking nondiscrimination provision of the ACA that prohibits discrimination in health care settings, specifically based on race, color, national origin, sex, age, and disability.
The 2024 Final Rule reaffirms already existing protections by codifying protection for LGBTQI+ communities against discrimination, establishing notice and signage requirements at care facilities so people know about their rights against discrimination, and so much more. The Final Rule will go into effect on July 5, 2024.
While we are disappointed the Biden Administration did not include everything PRH and our partners asked for in our comment to HHS on the proposed rule, there are some critical aspects of the Final you should be aware of as it ensures protections for pregnant people, LGBTQI+ individuals, people living with disabilities, and individuals who have limited English proficiency (LEP).
Here are PRH’s five key highlights of Section 1557’s 2024 Final Rule.
1.) Once again, Section 1557 defines “sex discrimination” and explicitly recognizes that protections against sex discrimination includes protections against discrimination for LGBTQI+ people.
Section 1557 was the first federal law to prohibit sex discrimination in health care and the Final Rule enforces these strong protections. First, the Final Rule reintroduces a clear definition of sex discrimination which the Trump Administration attempted to remove in previous rulemaking. The new Final Rule defines “sex discrimination” as “includ[ing], but not limited to, discrimination on the basis of sex characteristics, including intersex traits; pregnancy or related conditions; sexual orientation; gender identity; and sex stereotypes.” The 2024 Final Rule, for the first time, also explicitly includes discrimination on the basis of sexual orientation and sex characteristics within the definition of sex discrimination.
Further, the Final Rule’s preamble includes detailed recognition of how Section 1557 can provide protections for LGBTQI+ people who experience discrimination in health care by stating that protections against sex discrimination “must extend to protect people against discrimination on the basis of sexual orientation and gender identity.” The preamble also notes the significant health disparities and barriers to care that LGBTQI+ people endure and how experiences with discrimination while seeking health care impacts these disparities. Finally, the text of the Final Rule explicitly states that discrimination against LGBTQI+ people based on their gender identity, sexual orientation, or intersex traits, is prohibited in health care.
2.) The preamble of the Final Rule explicitly recognizes the need to protect people who are or have been pregnant from discrimination in health care.
The 2024 Final Rule also works to protect people from discrimination based on their pregnancy status by including protections in the reinstated definition for “sex discrimination.” Additionally, the Rule’s preamble recognizes that pregnancy discrimination has negative effects on a person’s ability to make decisions about their health and overall life and well-being. The preamble also includes specific examples of how health care entities can be in violation of Section 1557 for pregnancy-related discrimination, including denial of coverage of assisted reproductive services, discrimination against pregnant people who have chronic health conditions, and disparities in quality of care and treatment for pregnant and parenting people of color.
The Rule’s preamble explicitly names abortion as a protected pregnancy related condition, ensuring that people who have had abortions are also protected against discrimination. Further, the preamble addresses how Section 1557’s protections apply to abortion patients, by explaining that the Rule bars discrimination based on all past, present, and possible reproductive and sexual health decisions, and affirms that the ACA protects abortion care providers from discrimination.
3.) The Final Rule builds upon Section 1557’s recognition of intersectional discrimination in health care.
The goal of Section 1557 is to prevent discrimination within health care based on protected categories, including race, color, national origin, sex, age, or disability. Unlike other civil rights protections that only focus on discrimination based on a sole identity, Section 1557 recognizes the reality that people have multiple identities, and people with multiple oppressed identities endure compounding and intersecting discrimination because of it. The 2024 Final Rule builds on this recognition of intersectional discrimination in Section 1557 by adding key language to say that an individual may not face discrimination “on the basis of race, color, national origin, sex, age, disability, or any combination thereof.” This language reinforces the protections against intersectional discrimination under Section 1557.
4.) The Final Rule helps ensure people living with disabilities can access nondiscriminatory health care by establishing broad accessibility mandates.
One of the biggest wins of the 2024 Final Rule are its broad accessibility mandates that work to ensure people living with disabilities have meaningful access to health care. First, the Final Rule requires health care entities to provide auxiliary aids and services, including qualified interpreters, note-takers, real-time captioning, videophones, qualified readers, Braille materials, and more, so people living with disabilities can effectively communicate with their providers and other health care entities. The Final Rule also establishes clear standards for requesting effective communication and reasonable accommodations, so people are able to request the support they need.
The Rule recognizes “patient care decision support tools” as a potential source of discrimination, particularly against people living with disabilities, and prohibits discrimination through the use of any tools used to support clinical decision-making. The Rule also recognizes the importance of access to technology for ensuring accessible care, including protections to ensure access to telehealth services, community technology, and health related information for people living with disabilities. Finally, the Rule reiterates requirements prohibiting of institutionalization and segregation in care for people living with disabilities and building and facility accessibility requirements.
5.) The Final Rule prioritizes addressing language barriers to care by mandating the provision of language assistance services for people with limited English proficiency (LEP).
The 2024 Final Rule addresses the language-related barriers to care to ensure meaningful access for people whose primary language is not English. The Final Rule provides expectations on the reasonable steps that should be taken to provide meaningful access, including ensuring that language access services are accurately and timely provided free of charge. Further, the Rule requires that language access services are provided in a way that protects the privacy and the decision-making abilities of people with LEP.
The Final Rule sets forth key provisions that require people have meaningful access to language access services, including ensuring that only qualified interpreters, translators, and multi-lingual staff provide language assisted services, requiring the development of nondiscrimination policies, language access procedures, effective communication procedures, and reasonable modification procedures, and mandating notice of availability of language assistance services and auxiliary aids and services to individuals seeking care or accompanying someone seeking care.
Although the 2024 Final Rule does not include everything we requested in our comment to the 2022 Proposed Rule, these key highlights are solid wins when it comes to making health care safer, more accessible for all, and free from discrimination.
If you as a provider witness discrimination or if you’re a patient who has experienced discrimination you can file a complaint with the Office for Civil Rights.
To Learn More about the Section 1557 2024 Final Rule:
- Questions and Answers on 2024 Final Rule Addressing Nondiscrimination Protections under the ACA’s Section 1557.
- The Biden Administration’s Final Rule on Section 1557 Non-Discrimination Regulations Under the ACA.
- Updated Section 1557 of the Affordable Care Act Codifies Critical Protections for Marginalized Communities.
- What is Required under Title VI and Section 1557 to Ensure Language Access for Individuals with Limited English Proficiency?
- 1557 Final Rule Protects Against Bias in Health Care Algorithms.
Mackenzie Darling
If/When/How Federal Reproductive Justice Fellow