ACA Section 1557 Antidiscrimination Rule
Update: August 10, 2020
Today, CPR joined an amicus brief in support of the State of Washington’s motion for a preliminary injunction against the Department of Health and Human Services’ (HHS) new rule, set to go into effect August 18, which would weaken regulations implementing the antidiscrimination protections in Section 1557 of the Affordable Care Act (ACA).
The brief argues that the religious exemptions in the new rule would cause significant harm to disabled people, older adults, LGBTQ+ people, and women and that the removal of effective communication requirements and requirements to provide notice of non-discrimination and taglines to obtain language assistance services will harm people with limited English proficiency, people with disabilities, and older adults.
On June 14, 2019 the Office of Civil Rights of the Department of Health and Human Services (HHS) issued a new proposed rule that would significantly weaken the current rules interpreting Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination by health programs or facilities that receive federal funds from discriminating based on race, color, national origin, age, disability, or sex. HHS initiated a 60-day public comment period that ended on August 13, 2019. More than 130,000 comments were submitted, many of them critical of the proposed changes. You can read our comments in opposition to the proposed rule here.
In spite of those comments, this June, HHS finalized the rule with only minor changes, giving it an effective date of August 18, 2020. Several lawsuits have been filed in response, seeking to prevent the rule from going into effect.
HHS proposes to make changes to the Section 1557 rules that would, among other things:
- Limit the health programs and facilities subject to the non-discriminination requirements in Section 1557, including exempting private health insurance;
- Remove protections against discrimination for LGBTQ people, including based on gender identity and sexual orientation;
- Weaken requirements that help ensure meaningful access to people with limited English proficiency;
- Make it more difficult for people to access reproductive services;
- Remove requirements to provide notices and information about non-discrimination protections and the availability of language assistance services; and
- Limit the right of individuals to enforce their rights under Section 1557 in court.
The proposed rule also seeks comment on whether HHS should make changes to Section 1557’s accessibility requirements for people with disabilities, including:
- Effective Communication for People with Disabilities: The proposed rule asks about removing current requirements for entities with less than 15 employees to provide auxiliary aids and services to people with disabilities accessing care and treatment.
- Accessibility Standards for Buildings and Facilities: The proposed rule asks about removing current requirements that all covered entities must comply with the 2010 ADA Standards of Accessible Design.
- Requirement to Make Reasonable Modifications: Section 1557 currently requires covered entities to make reasonable modifications to policies, practices, or procedures when necessary, to avoid discrimination on the basis of disability, except if the modification would fundamentally alter the nature of the health program or activity. The proposed rule asks about completely removing this requirement or alternatively revising it to excuse entities from complying when it would cause them “undue hardship.”
Overall the proposed rule would severely weaken all of the ACA’s anti-discrimination protections for everyone, including people with disabilities. For an analysis of all of the changes proposed to Section 1557, see this Q&A from the National Health Law Program and this analysis about impacts on people with disabilities.