Trends to eliminate discrimination in all facets of the workplace continue to take hold across the country. Health and Human Services (HHS) is the latest government agency to make this known.
Earlier this month, HHS issued a notice of proposed rulemaking for ACA’s Section 1557. It would greatly strengthen the provision’s non-discrimination interpretations. Below we dive into the history of Section 1557 and what the notice of proposed rulemaking would do.
What is the ACA’s Section 1557?
Historically, the ACA’s Section 1557 generally prohibits certain health programs from discriminating on the basis of race, national origin, sex, color, age, and disability. Section 11557 essentially ensures that individuals are able to receive federally funded healthcare assistance and program support without discrimination.
In 2020, during the Trump administration, Section 1157’s interpretation of healthcare protections and benefits was reduced, particularly on the basis of sex-based discrimination, including sexual orientation and gender identity.
As such, the application of the rule was reduced from its original scope and prevented consumers from obtaining financial assistance in certain federal health programs, including reproductive healthcare services.
What does HHS’s proposed rulemaking do to Section 1557?
HHS’ proposed rulemaking restores protections originally established under Section 1557 and clarifies that Section 1577 prohibits discrimination on the basis of sex, gender identity, and sexual orientation. The move would further align non-discrimination requirements with previous court rulings, such as Bostock v. Clayton County, Lange v. Houston County, and Tovar v. Essentia Health. These cases all resulted in healthcare insurers having to compensate individuals with unique medical needs relating to sexual identity and gender. HHS’s proposed rulemaking simply makes clear that this should always be the case.
In addition, the proposed rulemaking would close previous gaps in federal healthcare regulations, including by:
- Making the nondiscrimination protections known to health insurance issuers
- Requiring HHS workers, health exchanges, and other healthcare facilities receiving funding to provide antidiscrimination training to staff workers
- Confirming that discrimination on the basis of sex includes pregnancy or related conditions, such as pregnancy termination
- Ensuring proper training for healthcare program workers to assist limited English proficient speakers with obtaining necessary care
For a complete list of the changes to Section 1557 under the proposed rulemaking, head to the HHS fact sheet. The department is currently accepting comments via www.regulations.gov.
The big picture
The move to reinstate and confirm the protections under Section 1557 is the culmination of various initiatives led by the Biden administration, including Executive Order 13985, Advancing Racial Equity and Support for Underserved Communities Through Federal Government, and the Equal Employment Opportunity Commission’s recent Equity Action Plan, which outlines steps for minimizing discrimination and ensuring greater access for marginalized communities.
Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure said in an HHS press release, “Strengthening Section 1557 supports our ongoing efforts to provide high-quality, affordable health care and to drive health equity for all people served by our programs.”
The proposed rulemaking aligns with the push for greater equality, both in the workplace and in everyday life. It will need to go through legislative approval and possible amendments before the changes take effect but, regardless, the move is telling of what the future holds for the greater good of our country.
ACA support elsewhere
Meanwhile, ACA support continues to take shape in other political areas. For example, included in Biden’s Inflation Reduction Act are provisions to extend ACA subsidies through 2025, greatly increasing access to quality, affordable healthcare for years to come.
The Act recently passed in the Senate in a 51-50 vote, with Vice President Kamala Harris breaking the tie. Biden is likely to sign the Act into law later this month.
With legislation bolstering the ACA on the horizon for the foreseeable future, and more ACA subsidies on the way, organizations should turn their attention to the healthcare law’s Employer Mandate.
Under the ACA’s Employer Mandate, Applicable Large Employers, or employers with 50 or more full-time employees and full-time equivalent employees must:
- Offer Minimum Essential Coverage to at least 95% of their full-time employees (and their dependents) whereby such coverage meets Minimum Value
- Ensure that the coverage for the full-time employee is affordable based on one of the IRS-approved methods for calculating affordability
Organizations should be aware that IRS enforcement of the ACA’s Employer Mandate is ever-increasing. The agency recently began asking employers to provide detailed ALE full-time calculations to substantiate ACA filings in a penalty assessment.
If you need assistance complying with the requirements of the Employer Mandate, contact us to learn about ACA Complete. We’ve helped thousands of clients successfully file and furnish their ACA information accurately and on time, preventing millions in penalties.
To learn more about ACA compliance and best practices for minimizing IRS penalty risk, download the guide What is the ACA’s Employer Mandate below.
For information on ACA penalty amounts, affordability percentages, important filing deadlines, steps for responding to penalty notices, and best practices for minimizing IRS penalty risk, download the ACA 101 Toolkit.