Section 1557: The ACA's Bold Step Against Healthcare Discrimination

The Affordable Care Act (ACA), enacted in 2010, is landmark legislation that aims to expand healthcare access, reduce healthcare costs, and improve healthcare quality for Americans. Among its many provisions, Section 1557 is particularly noteworthy for its dedication to promoting health equity and justice.

Known as the non-discrimination provision, Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in specific health programs and activities that receive federal funding. This section underscores the ACA's commitment to ensuring all individuals have equal access to and protection against discrimination in health care.

Section 1557 is crucial in fostering a more inclusive and equitable healthcare system by addressing systemic inequalities. Its implementation marks a significant step forward in the ongoing effort to eliminate healthcare disparities and ensure that every person receives the care they need, free from discrimination.

Background of Section 1557

Disparities in healthcare access and quality were and continue to be a significant issue in the United States, with large groups of people facing systemic barriers to receiving care due to discrimination. Recognizing this, the drafters of the ACA sought to address these inequalities, leading to the inclusion of Section 1557. 

Section 1557 explicitly prohibits discrimination in health programs and activities that receive federal financial assistance, are administered by the Executive Branch, or are under Title I of the ACA. This includes a wide range of entities, such as hospitals, health insurance marketplaces, and health plans participating in the marketplace. The provision is the first to extend sex discrimination protections to healthcare, a historic step that broadens the scope of civil rights in the medical field.

Here are some examples of the types of programs and activities to which these regulations typically apply:

1. Hospitals and health clinics that receive federal funding, such as those that accept Medicare or Medicaid payments or federal grants.
2. Health insurance issuers that participate in the Health Insurance Marketplaces or receive federal funds through programs like Medicare Advantage.
3. State health agencies, to the extent they are funded by federal sources for programs like Medicaid, the Children's Health Insurance Program (CHIP), or public health initiatives.
4. Community health programs, including those receiving federal grants through the Department of Health and Human Services (HHS) for public health, preventive care, or health education.
5. Medical or dental practices that receive federal financial assistance, directly or indirectly, such as through Medicaid reimbursements.
6. Academic medical centers and universities with health-related programs that receive federal funding, including research grants from federal agencies like the National Institutes of Health (NIH).
7. Nursing homes and long-term care facilities that receive federal funding, for example, through Medicare or Medicaid.

Section 1557's scope is broad, covering almost all aspects of the healthcare system that benefit from federal support in some form. 

2016 rulemaking

In May 2016, the HHS Office for Civil Rights issued a final rule to implement Section 1557. This rule was significant for several reasons:

• Broad protection: It clarified and codified that discrimination on the basis of sex includes, for the first time, discrimination based on gender identity and termination of pregnancy. This broadened the scope of protection under the ACA and was seen as a significant step forward for transgender rights in healthcare.
• Accessibility requirements: The rule included provisions to improve accessibility for individuals with disabilities and those with limited English proficiency, requiring covered entities to provide appropriate auxiliary aids and services and to take reasonable steps to provide meaningful access to each individual.
• Enforcement: The rule outlined the mechanisms for enforcement and grievance procedures for those who believed they had suffered discrimination under the covered programs.

2020 rulemaking

In June 2020, the HHS issued a new final rule revising the 2016 regulations. The changes in the 2020 rulemaking included several key aspects:

• Narrowed scope of protection: The 2020 rule eliminated the explicit protections against discrimination in health care based on gender identity and sexual orientation. At the time, the administration argued that sex discrimination provisions should be interpreted as referring only to biological sex, undoing the broader interpretations of the 2016 rules.
• Reduced burdens: The rule also aimed to reduce the regulatory burdens on the healthcare industry, including eliminating specific language access requirements deemed overly burdensome for healthcare providers and insurers.
• Legal and policy shifts: The changes reflected a significant policy shift under the Trump administration, aligning with its broader efforts to roll back protections based on gender identity across various areas of federal policy.

Legal and policy impact

Both rulemakings have been subject to legal challenges and have sparked significant debate. In particular, the 2020 rule's changes faced immediate legal challenges, with several courts issuing preliminary injunctions against parts of the rule. Critics argued that the 2020 rule would lead to increased discrimination against transgender individuals and others in healthcare settings.

Subsequent administrations can and have reviewed, revised, or rescinded previous rulemakings to align with their policy priorities. Following the 2020 rulemaking, for example, the Biden administration announced its intention to enforce Section 1557 by prohibiting discrimination based on sexual orientation and gender identity, indicating a reversal of the 2020 changes.

These rulemakings highlight the evolving nature of healthcare civil rights protections under Section 1557, reflecting broader societal debates about discrimination, access to healthcare, and the interpretation of civil rights laws.

Relationship to other laws

Section 1557 of the Affordable Care Act (ACA) is distinct in that it explicitly prohibits discrimination on the basis of race, color, national origin, sexual orientation, age, or disability in certain health programs or activities. However, it does not stand alone; it builds upon a foundation laid by several other federal civil rights laws.

Below are key laws that relate to Section 1557:

1. Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color, or national origin in programs and activities receiving federal financing. Section 1557 extends this prohibition to the health care context, applying these protections to any health program or activity receiving federal funds.
2. Title IX of the Education Amendments of 1972: Title IX prohibits discrimination on the basis of sex in education programs or activities that receive federal financial assistance. Section 1557 incorporates these protections into healthcare settings, making it clear that discrimination based on sex, including gender identity and pregnancy status, is prohibited in healthcare programs receiving federal assistance.
3. The Age Discrimination Act of 1975 prohibits age discrimination in programs or activities receiving federal financial assistance. Similarly, Section 1557 ensures that these age discrimination protections apply to health care.
4. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against individuals with disabilities in programs or activities that receive federal financial assistance. Section 1557 reinforces these protections in healthcare settings, requiring entities covered by the ACA to make their programs accessible to individuals with disabilities.
5. Americans with Disabilities Act (ADA): Although not directly amended by Section 1557, the ADA prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places open to the general public. The principles of the ADA complement the protections under Section 1557, especially in ensuring that healthcare services and facilities are accessible to individuals with disabilities.

Section 1557 is a critical part of a broader legal framework designed to prevent discrimination and promote equity in health care.

Implementation and enforcement

The Office for Civil Rights (OCR) within the Department of Health and Human Services (HHS) enforces Section 1557's prohibition against discrimination in healthcare. OCR issues guidance and regulations, helping entities comply with requirements like effective communication for people with disabilities and language assistance for non-English speakers. Healthcare providers are tasked with offering auxiliary aids and services, free language assistance, and non-discriminatory health programs to ensure equal treatment for all.

Implementation challenges exist, including concerns over the cost and feasibility of these requirements and debates over accommodating various gender identities. Legal challenges have also emerged, creating a complex legal landscape, occasionally putting aspects of OCR's regulations on hold. Despite these issues, Section 1557's enforcement is crucial for health equity and protecting patient rights.

What to do if you experience discrimination

Suppose you experience discrimination in a healthcare setting. In that case, the first step is to document the incident in as much detail as possible, including dates, times, witnesses, and any communication exchanged. This documentation will be crucial if you decide to file a complaint.

You should then consider contacting the healthcare facility's patient advocate or ombudsman, as many healthcare organizations have procedures in place to address complaints internally.

Additionally, you have the right to file a discrimination complaint with the Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS), either online through the HHS website, by mail, or via email. The OCR is responsible for enforcing anti-discrimination laws in healthcare settings, and they can investigate your complaint and take action if necessary.

We also suggest you consult a legal professional specializing in civil rights or healthcare law to explore your legal options and ensure your rights are fully protected. Seeking support from advocacy groups or organizations dedicated to healthcare rights can provide additional resources and assistance.