By: Kendall Jackson, Esq.

The non-discrimination protections of Section 1557 of the Affordable Care Act are not new, as the Affordable Care Act was originally enacted in 2010. However, the recent Final Rule published on May 5, 2024, provided clarification and additional requirements as they relate to strengthening civil rights protections for individuals.

First, it is important to remember that Section 1557 is not applicable to all health plans. Section 1557 applies to “covered entities,” which are health programs or activities that receive HHS funding. “Covered entities” also include HHS-administered health programs or activities, and the health insurance Marketplace.

The Final Rule recognized the value and prevalence of telehealth services by extending the prohibition of discrimination on the basis of race, color, national origin, sex, age or disability to health programs and activities offered through telehealth services. Additionally, under the Final Rule, health plans must ensure that such services are accessible to individuals with disabilities, including providing program access for individuals with limited English proficiency (LEP). This requirement is a subset of the larger requirement under the Final Rule to provide free language assistance services and auxiliary aids to individuals with LEP and individuals with disabilities.

Perhaps one of the most notable limitations of the Final Rule provides that plans are prohibited from having or implementing a categorical coverage exclusion or limitation for all health services related to gender transition or other gender-affirming care. This is particularly significant as it clarifies that gender-affirming care is within the scope of the protections against sex discrimination under Section 1557. Plans subject to Section 1557 should be sure to remove any non-compliant exclusions for gender-affirming care or sex reassignment that would run afoul of these new protections.

The Final Rule demonstrates the commitment of the Department of Health and Human Services to strengthen and extend the civil rights protections for individuals beyond what was afforded when the Affordable Care Act was enacted in 2010. These new guidelines reflect the changing landscape over the past several years and we will likely see even more protections added in the future.