HHS Issues New Rule to Strengthen Nondiscrimination Protections and Advance Health Care Rights

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services (CMS) issued a final rule under Section 1557 of the Affordable Care Act (ACA) advancing protections against discrimination in health care. By taking bold action to strengthen protections against discrimination on the basis of race, color, national origin, sex, age, and disability, this rule reduces language access barriers, expands physical and digital accessibility, tackles bias in health technology, and much more.

The 1557 final rule draws on extensive stakeholder engagement, review of over 85,000 comments from the public, the Department’s enforcement experience, and developments in civil rights law. Among other things, the rule:

• • Holds HHS’ health programs and activities to the same nondiscrimination standards as recipients of Federal financial assistance.
  • For the first time, the Department will consider Medicare Part B payments as a form of Federal financial assistance for purposes of triggering civil rights laws enforced by the Department, ensuring that health care providers and suppliers receiving Part B funds are prohibited from discriminating on the basis of race, color, national origin, age, sex and disability. 
  • Requires covered health care providers, insurers, grantees, and others, to proactively let people know that language assistance services are available at no cost to patients. 
  • Requires covered health care providers, insurers, grantees, and others to let people know that accessibility services are available to patients at no cost.  
  • Clarifies that covered health programs and activities offered via telehealth must also be accessible to individuals with limited English proficiency, and individuals with disabilities. 
  • Protects against discrimination by codifying that Section 1557’s prohibition against discrimination based on sex includes LGTBQI+ patients.
  • Respects federal protections for religious freedom and conscience and makes clear that recipients may simply rely on those protections or seek assurance of them from HHS. 
  • Respects the clinical judgement of health care providers.
  • Protects patients from discriminatory health insurance benefit designs made by insurers. 
  • Clarifies the application of Section 1557 nondiscrimination requirements to health insurance plans.

The rule clarifies that nondiscrimination in health programs and activities continues to apply to the use of AI, clinical algorithms, predictive analytics, and other tools. This clarification serves as one of the key pillars of HHS’ response to the President’s Executive Order on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. Specifically, the rule: 

• Applies the nondiscrimination principles under Section 1557 to the use of patient care decision support tools in clinical care.
• Requires those covered by the rule to take steps to identify and mitigate discrimination when they use AI and other forms of decision support tools for care.

This is a summary of the press release, not an independent interpretation of Section 1557.  The Final Rule may be viewed or downloaded at: hhs.gov/1557