HHS Posts Nondiscrimination in Health Programs and Activities Final Rule
Alternative effective dates table for specific provisions was updated on 5/8/2024.
On April 26, 2024, the Department of Health and Human Services (HHS), under its Office of Civil Rights (OCR), released a final rule under Section 1557 of the Affordable Care Act (ACA). The final rule will be posted in the Federal Register on May 6, 2024. Access is available now in the Federal Register at https://www.govinfo.gov/content/pkg/FR-2024-05-06/pdf/2024-08711.pdf
It is critical for all providers to carefully review the content in the final rule to understand the regulatory requirements and compliance timeline.
The updated regulatory text begins on page 172. Review this area carefully, to note the details of provider regulatory requirements.
What is Section 1557?
Section 1557 is the nondiscrimination provision of the ACA, prohibiting discrimination based on race, color, national origin, sex, age, or disability in certain health programs and activities, including those that receive Federal financial assistance. This section generally applies to healthcare providers that receive Federal financial assistance. It also applies to both in-person and telehealth care.
Who does this rule apply to?
The final rule applies to health programs (providers) or activities that receive HHS funding, health programs or activities administered by HHS (such as the Medicare Part D program), and the health insurance Marketplace (and all plans offered by issuers that participate in those Marketplaces that receive Federal financial assistance)
Highlights of the rule that apply to healthcare providers follow:
- 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 healthcare providers and suppliers receiving Part B funds are prohibited from discriminating based on 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. Providers must inform patients that language assistance services and auxiliary aids are available at no cost if needed.
- The notice must be provided in the top 15 languages spoken by individuals with limited English proficiency (LEP) in the relevant state(s) where the entity operates. Click here for the OCR-prepared sample notices in English and 47 other languages.
- The notice must be communicated to individuals with disabilities as effectively as they are to individuals without disabilities.
- The notice must be displayed in prominent locations both physically and on the covered entities’ websites and must be made available upon request.
- Requires covered healthcare 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.
- The final rule reaffirms that a covered entity may rely on applicable Federal protections for religious freedom and conscience, and any provisions under this final rule are not required when such protections apply.
- The final rule also includes an administrative process for covered entities to seek an assurance of exemption in writing from OCR.
- Respects the clinical judgment of health care providers.
Given the increasing use of artificial intelligence (AI) in health programs and activities, 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.
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.
1557 Coordinator Requirement (§ 92.7)
The final rule requires health care providers with 15 or more employees to designate at least one employee to serve as a Section 1557 Coordinator (“Coordinator”) to coordinate their efforts to comply with and carry out the covered entity’s responsibilities under Section 1557 and the part. OCR will also permit covered entities to, as appropriate, assign one or more designees to carry out some of the responsibilities of the coordinator.
Training Requirements (§ 92.9)
Healthcare providers are required to implement policies and training to improve compliance. These requisite policies must provide language assistance services for people with LEP and include effective communication and reasonable modifications for people with disabilities.
Effective Date of The Rule
This overall final rule will be effective on July 5, 2024, but see the table below for alternative effective dates of specific provisions.
| Section 1557 Requirement and Provision | Date by which covered entities must comply |
| § 92.7 Section 1557 Coordinator | Within 120 days of the effective date – Nov 2, 2024 |
| § 92.8 Policies and Procedures | Within one year of the effective date – July 5, 2025 |
| § 92.9 Training Covered entities must document employee completion of the training required in written or electronic form and retain said documentation for no less than three (3) calendar years. | Following a covered entity’s implementation of the policies and procedures, and no later than one year of effective date – July 5, 2025 (Training delivered to each relevant employee as soon as possible, but no later than 30 days following a covered entity’s implementation of the policies and procedures, and no later than 300 days following July 5, 2024) |
| § 92.10 Notice of Nondiscrimination | Within 120 days of the effective date – Nov 2, 2024 |
| § 92.11 Notice of Availability of Language Assistance Services and Auxiliary Aids and Services | Within one year of the effective date – July 5, 2025 |
| § 92.210(b), (c) Use of patient care decision support tools | Following a covered entity’s implementation of the policies and procedures and no later than 300 days of the effective date – May 1, 2026 |
| Details for each of the regulatory requirements in this table begin on page 172 of the rule in the Federal Register. Please read each one of them carefully to ensure compliance | |
Resources
Section 1557 Fact Sheet (available in 17 languages)