On July 25, 2022, HHS OCR issued a Notice of Proposed Rulemaking to revise its 1557 regulations. The previous version of this rule limited its scope to cover less programs and services limiting nondiscrimination protections. This proposed rule importantly solidifies protections against discrimination on the basis of sex including sexual orientation and gender identity consistent with the U.S. Supreme Court’s holding in Bostock v. Clayton County. Strengthening these rules is a significant achievement for the Biden-Harris Administration and promotes gender and health equity for communities of color, women, LGBTQI+ individuals, people with disabilities, persons with limited English proficiency (LEP), and older people.
The Section 1557 Notice of Proposed Rulemaking (NPRM) seeks to address gaps identified in prior regulations in order to advance protections under this rule. It:
- Reinstates the scope of Section 1557 to cover HHS’ health programs and activities.
- Clarifies the application of Section 1557 nondiscrimination requirements to health insurance issuers that receive federal financial assistance.
- Aligns regulatory requirements with Federal court opinions to prohibit discrimination on the basis of sex including sexual orientation and gender identity.
- Makes clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination.”
- Ensures requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures.
- Requires entities to give staff training on the provision of language assistance services for individuals with limited English proficiency (LEP), and effective communication and reasonable modifications to policies and procedures for people with disabilities.
- Requires covered entities to provide a notice of nondiscrimination along with a notice of the availability of language assistance services and auxiliary aids and services.
- Explicitly prohibits discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities.
- Clarifies that nondiscrimination requirements applicable to health programs and activities include those services offered via telehealth, which must be accessible to LEP individuals and individuals with disabilities.
- Interprets Medicare Part B as federal financial assistance.
- Refines and strengthens the process for raising conscience and religious freedom objections.
While the Department is undertaking this rulemaking, both the statute and the current regulation are in effect. If you believe that you or another party has been discriminated against on the basis of race, color, national origin, sex, age, or disability, visit the OCR complaint portal to file a complaint online.
HHS encourages all stakeholders, including patients and their families, health plans, health care providers, health care professional associations, consumer advocates, and government entities, to submit comments through regulations.gov.
Public comments on the NPRM were due 60 days after publication of the NPRM in the Federal Register. The Department also conducted Tribal consultation.
- Read the Press Release (available in 17 languages)
- Read the Fact Sheet (available in 17 languages)
On June 12, 2020, HHS OCR announced a final rule revising its Section 1557 regulations.
Update (December 21, 2022)
On May 25, 2021, the HHS Office for Civil Rights published a Notice regarding the application of Bostock v. Clayton County, GA, 140 S. Ct. 1731 (2020), to Section 1557 of the Affordable Care Act. This Notice is entitled “Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972.”
On October 14, 2022, in Neese v. Becerra, 2:21-CV-163-Z (N.D. Tex.), the Federal District Court for the Northern District of Texas certified a class of “all healthcare providers subject to 1557 of the Affordable Care Act.” On November 22, 2022, the court entered final judgment in the case. In its Judgment, the court set aside the Notice and stated that “Plaintiffs and members of the certified class need not comply with the interpretation of ‘sex’ discrimination” articulated in the Notice. The court also declared that, as applied to the certified class, the prohibition on “sex” discrimination in Section 1557 does not include discrimination on the basis of sexual orientation or gender identity. OCR will continue to receive complaints and conduct investigations under its authorities prohibiting sex discrimination to the full extent not prohibited by court order.
Update (May 10, 2021)
On June 15, 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 (Title VII)’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity.Bostock v. Clayton County, GA, 140 S. Ct. 1731 (2020). TheBostockmajority concluded that the plain meaning of “because of sex” in Title VII necessarily included discrimination because of sexual orientation and gender identity.Id.at 1753-54.
SinceBostock, two federal circuits have concluded that the plain language of Title IX of the Education Amendments of 1972’s (Title IX) prohibition on sex discrimination must be read similarly.See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020),as amended(Aug. 28, 2020),reh’g en banc denied, 976 F.3d 399 (4th Cir. 2020),petition for cert. filed, No. 20-1163 (Feb. 24, 2021);Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020),petition for reh’g en banc pending, No. 18-13592 (Aug. 28, 2020). In addition, on March 26, 2021, the Civil Rights Division of the U.S. Department of Justice issued a memorandum to Federal Agency Civil Rights Directors and General Counsel concluding that the Supreme Court’s reasoning inBostockapplies to Title IX of the Education Amendments of 1972. As made clear by the Affordable Care Act, Section 1557 prohibits discrimination “on the grounds prohibited under . . . Title IX.” 42 U.S.C. § 18116(a).
Consistent with the Supreme Court’s decision inBostockand Title IX, beginning May 10, 2021, OCR will interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. This interpretation will guide OCR in processing complaints and conducting investigations, but does not itself determine the outcome in any particular case or set of facts.
In enforcing Section 1557, as stated above, OCR will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bbet seq., and all other legal requirements. Additionally, OCR will comply with all applicable court orders that have been issued in litigation involving the Section 1557 regulations, includingFranciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019);Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1 (D.D.C. 2020);Asapansa-Johnson Walker v. Azar, No. 20-CV-2834, 2020 WL 6363970 (E.D.N.Y. Oct. 29, 2020); andReligious Sisters of Mercy v. Azar, No. 3:16-CV-00386, 2021 WL 191009 (D.N.D. Jan. 19, 2021).
OCR applies the enforcement mechanisms provided for and available under Title IX when enforcing Section 1557’s prohibition on sex discrimination. 45 C.F.R. § 92.5(a). Title IX’s enforcement procedures can be found at 45 C.F.R. § 86.71 (adopting the procedures at 45 C.F.R. §§ 80.6 through 80.11 and 45 C.F.R. Part 81).
- Read the Press Release
- Read the Fact Sheet |Español (Spanish) |繁體中文 (Chinese)|Tiếng Việt (Vietnamese)|Tagalog (Tagalog – Filipino)
