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The Department of Health and Human Services recently issued proposed regulations on Section 1557 of the Affordable Care Act. This section prohibits discrimination by covered entities on the basis of race, color, national origin, sex, age or disability. The proposed regulations follow a series of regulatory updates, executive interpretations, and litigation throughout three presidential administrations.
Among other changes, the proposed rule addresses which entities are subject to the nondiscrimination rules. While Section 1557 does not apply directly to self-insured group health plans, the proposed regulation states that the nondiscrimination rules will apply to “every health program or activity, any part of which receives Federal financial assistance, directly or indirectly, from the Department.” “Federal financial assistance” includes any grant, loan, credit, subsidy, contract or other arrangement by which the federal government provides assistance.
The proposed regulations also expand the interpretation of the sex nondiscrimination provisions to align Section 1557 with the Supreme Court's recent opinion in Bostock v. Clayton County, which held that Title VII’s prohibition of discrimination on the basis of sex in the employment context includes sexual orientation and gender identity. The proposed rule clarifies that the prohibition against discrimination on the basis of sex includes sex stereotypes, sex characteristics, pregnancy, sexual orientation, and gender identity. The rule also expands this provision to include an individual’s marital, parental, or family status.
Public comments on the proposed rules are due in early October. If finalized as presented, the proposed rule will greatly extend the protections provided by Section 1557.