On May 13, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) published the final rule implementing Section 1557 of the Affordable Care Act (ACA). Section 1557 contains the nondiscrimination provisions of the ACA, which prohibits discrimination based on race, color, national origin, sex, age and disability. The final rule applies to any health program or activity that receives federal funding or that is administered by any government agency governed by the ACA.
The rule finalizes many of the provisions contained in the proposed rule that HHS published on September 8, 2015 following a 2013 Request for Information (RFI) regarding nondiscrimination issues. The proposed rule received 24,875 comments from activist groups, health care providers, consumer groups, insurers and individuals. While commenters asked for various changes, the final rule is essentially unchanged from the proposed rule.
The final rule includes broad prohibitions against discrimination, but HHS declined to include specific details and scenarios that might label specific actions as discriminatory or not discriminatory. Commenters requested clarification on a variety of specific situations, including whether limiting gender transition services to only individuals over the age of 18 is discriminatory, whether requiring individuals with psychiatric disabilities to receive ongoing mental health treatment in order to receive treatment for unrelated conditions is discriminatory and clarification regarding in what ways research trials can avoid being discriminatory. In response, OCR stated: “The determination of whether a certain practice is discriminatory typically requires a nuanced analysis that is fact-dependent.” While some examples are included in the final rule, not every scenario brought up in the public comments is addressed.
One notable aspect of the final rule is the requirement that translation services be provided to individuals who do not speak English, including individuals who speak only American Sign Language. The provision of professional translators can sometimes be a life-and-death matter, as relying on bystanders, friends or family members to translate can result in fatal medical mistakes.
Another noteworthy aspect is the final rule’s declaration that blanket exclusions of gender transition care are a form of sex discrimination. However, the final rule does not specify which gender transition services must be covered; it simply states that excluding all gender transition services is noncompliant with the ACA. Additionally, the final rule reinforces a stance taken on previous FAQs issued by the DOL Employee Benefits Security Administration (EBSA), stating that insurers cannot deny coverage of sex-specific preventive care services based on transgender status (for example, denying coverage of a Pap smear for a transgender man or a prostate exam for a transgender woman). The final rule also specifies that providers cannot discriminate against patients based on transgender status. However, few providers are equipped to provide competent care to lesbian, gay, bisexual or transgender (LGBT) patients, though more hospitals are investing in training and infrastructure changes to help provide effective and respectful care to the LGBT community.
The final rule does not include a religious exemption to the nondiscrimination provisions. The nondiscrimination provisions do not contradict any provider conscience laws, the Religious Freedom Restoration Act (RFRA) or any religious exemptions provided elsewhere in the Affordable Care Act.
The effective date of the rule is July 18, 2016. Any changes that must be made to health insurance plans—including changes in cost-sharing, covered services and coverage exclusions—must be made by the first day of the plan year beginning on or after January 1, 2017. The plan applies to excepted benefits in addition to plans that offer minimum essential coverage or minimum value under the Affordable Care Act.