Pursuant to decisions by various district courts regarding the 2024 Final Rule implementing Section 1557, entitled Nondiscrimination in Health Programs and Activities, 89 Fed. Reg. 37,522 (May 6, 2024) (“2024 Final Rule”), provisions are stayed or enjoined as indicated below:
Notices of appeal have been filed in all three cases.
The Office for Civil Rights (OCR) enforces Section 1557 of the Affordable Care Act (Section 1557), which prohibits discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics), in covered health programs or activities. 42 U.S.C. 18116.
On Friday April 26, 2024, OCR issued a final rule under Section 1557 of the Affordable Care Act (ACA) advancing protections against discrimination in health care.
If OCR determines that it has jurisdiction, OCR will investigate the complaint or, in some cases, refer the complaint to an agency with joint jurisdiction. When OCR identifies a violation or compliance concern, it will work with the recipient to achieve compliance with the law. Depending on the scope of the changes required, complaints can be resolved through voluntary compliance letters or agreements requiring the recipient to develop policies, monitoring, notification, and training, which also resolve the specific incidents alleged in the complaint. If voluntary compliance cannot be achieved, OCR can issue a formal findings letter and refer the case to DOJ or begin administrative proceedings to revoke federal funds.
Resources for ProvidersSection 1557 of the Affordable Care Act (ACA) requires covered entities to post notices of non-discrimination and availability of language assistance. Sample notices and other resources are available in nearly 50 languages for providers to use.
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:
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.
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). The Bostock majority 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.
Since Bostock, 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 in Bostock applies 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 in Bostock and 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. § 2000bb et 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, including Franciscan 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); and Religious 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).