HHS Proposes Rule on ACA Anti-Discrimination Provisions

On September 8, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) proposed a rule to interpret Section 1557 of the Affordable Care Act (ACA).

Section 1557, which prohibits discrimination in health care and related industries, expressly bans discrimination based on race, color, national origin, sex, age and disability.

The proposed rule would interpret Section 1557 to apply to all entities that receive federal funding from HHS—including providers who accept Medicare patients and all Marketplace plans. The rule would also apply to related entities, such as organizations that help the uninsured sign up for Marketplace plans.

The rule would apply to all portions of the entity, meaning that an insurance carrier offering plans on the Marketplace would be required to comply with the rule even with respect to insurance plans sold outside of the Marketplace. However, the proposed rule is unclear regarding its application to self-funded plans.

The proposed rule would interpret the sex discrimination provision of Section 1557 as banning discrimination based on sexual orientation and on transgender status, including blanket exclusions of gender transition-related care under a health insurance plan. The rule proposal includes a request for comment regarding sex discrimination and extension of religious exemptions to religious organizations and providers.

As proposed, the rule would also require provision of translation and interpretation assistance for non-English-speakers and for individuals with disabilities, including deaf or speech-impaired individuals.

Additionally, the proposed rule would create an enforcement mechanism by allowing individuals to take private action to collect damages if their rights under Section 1557 are violated.

The comment period is open until November 9, 2015, after which HHS will take time to finalize the rule. The rule would become effective 60 days after being finalized.

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