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HHS Issues Final Rule on Nondiscrimination in Health Programs

On May 13, 2016, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued the Final Rule titled “Nondiscrimination in Health Programs and Activities,” which prohibits discrimination under Section 1557 of the Affordable Care Act (ACA). HHS states that the purpose of this rule is to “help advance equity and reduce health disparities by protecting some of the populations that have been most vulnerable to discrimination in the health care context.” Specifically, under the rule, individuals may not be discriminated against in health care on the basis of race, color, age, national origin, disability, or sex.”

The protection from discrimination based on sex notably applies not only to an individual’s sex, but also to pregnancy, gender identity, and sex stereotyping. Section 1557 of the ACA, which is implemented by this rule, was the first federal civil rights law to broadly prohibit discrimination based on sex in federally funded health programs. (Prior civil rights laws overseen by OCR dealt generally with discrimination based on race, color, national origin, disability, or age; sex, however, has never been included on this list.)

Who is subject to this rule?

The scope of this rule is broad and specifically covers:

  • All health care providers, health insurance issuers, employers, health care programs or activities that receive any Federal funding/financial assistance from HHS (e.g. Medicare Part A, student health plans, advanced premium tax credits, etc.)
  • All Health Insurance Marketplaces (Federal and state) and issuers that participate in the Marketplaces; and
  • Any health program administered by HHS.

What are the key provisions of the rule?

Generally, this rule implements Section 1557 of the ACA, which sought to expand upon existing Federal civil rights law by protecting, for the first time, sex discrimination in health care. Other provisions under this rule also require additional protections for individuals with disabilities as well as those who may be discriminated against.

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