Section 1557 of the
Affordable Care Act
A Civil Rights Training for Health Providers and
Employees of Health Programs and
Health Insurance Issuers
Content provided by the U.S. Department of Health and Human Services, Office for Civil Rights
July 2016
Training objectives
During this training, participants will learn:
1. Background on Section 1557
2. Section 1557’s nondiscrimination requirements
3. Federal enforcement and Section 1557 resources
BACKGROUND
3
What is Section 1557?
Section 1557 is the nondiscrimination law in the Affordable Care Act (ACA).
Section 1557 is important to achieving the ACA’s goals of expanding access to health
care and coverage, eliminating barriers, and reducing health disparities.
Section 1557 prohibits discrimination on the basis of race, color, national origin, sex,
age, or disability in certain health programs and activities.
Section 1557 builds upon longstanding nondiscrimination laws and provides new civil
rights protections.
What are some of the notable provisions of
Section 1557?
Section 1557 is the FIRST Federal civil rights law to broadly prohibit sex discrimination
in health programs and activities.
Sex discrimination includes, but is not limited to, discrimination based on an individual’s
sex, including pregnancy, related medical conditions, termination of pregnancy, gender
identity and sex stereotypes.
Gender identity means an individual's internal sense of gender, which may be male, female,
neither, or a combination of male and female.
Sex stereotypes means stereotypical notions of masculinity or femininity.
Section 1557 applies to the Health Insurance Marketplaces and to all health plans
offered by health insurance companies that participate in the Marketplaces.
How was the public involved in developing
Section 1557?
OCR consulted with consumers, health service providers, health insurance issuers,
and other stakeholders about Section 1557.
OCR received nearly 25,000 written comments on the proposed Section 1557
regulation.
OCR published the final Section 1557 regulation on May 18, 2016; it reflects the
public’s comments and OCR’s engagement with stakeholders.
REQUIREMENTS
7
Who must comply with HHS’s
Section 1557 regulation?
All health programs and activities that receive Federal financial assistance from HHS.
Examples of types of covered entities: hospitals, health clinics, physicians’ practices, community health
centers, nursing homes, rehabilitation centers, health insurance issuers, State Medicaid agencies, etc.
Federal financial assistance includes grants, property, Medicaid, Medicare Parts A, C and D payments,
and tax credits and cost-sharing subsidies under Title I of the ACA. (Medicare Part B is not included.)
All health programs and activities administered by entities created under Title I of the ACA (i.e.,
State-based and Federally-facilitated Health Insurance Marketplaces).
All health programs and activities administered by HHS (e.g., Medicare Program, Federally-
facilitated Marketplaces).
Where an entity is principally engaged in health services or health coverage, ALL of the entity’s
operations are considered part of the health program or activity, and must be in compliance with
Section 1557 (e.g., a hospital’s medical departments, as well as its cafeteria and gift shop).
The rule does not apply to employment practices such as hiring or firing, except that covered
employers are responsible for their employee health benefit programs in certain circumstances.
Discrimination based on an individual’s race,
color or national origin is prohibited
Under Section 1557, a covered entity may not:
Segregate, delay or deny services or benefits based on an individual’s race, color or
national origin. For example,
A covered entity may not assign patients to patient rooms based on race.
A covered entity may not require a mother to disclose her citizenship or immigration
status when she applies for health services for her eligible child.
Delay or deny effective language assistance services to individuals with limited English
proficiency (LEP).
The term “national origin” includes, but is not limited to, an individual’s, or his or her
ancestor’s, place of origin (such as a country), or physical, cultural, or linguistic
characteristics of a national origin group.
Section 1557 protects individuals in the United States, whether lawfully or not, who experience
discrimination based on any of Section 1557’s prohibited bases.
Requirements for communicating
with LEP individuals
A covered entity must take reasonable steps to provide meaningful access to each individual with LEP eligible
to be served or likely to be encountered in its health programs and activities. Reasonable steps may include
the provision of language assistance services, such as oral language assistance or written translations.
A covered entity must publish taglines, which are short statements in non-English languages, in significant
publications and post in prominent locations and on its website, to notify the individual about the availability
of language assistance services.
A covered entity must offer a qualified interpreter when oral interpretation is a reasonable step to provide an
individual with meaningful access.
Where language services are required, they must be provided free of charge and in a timely manner.
A covered entity must adhere to certain quality standards in delivering language assistance services. For
instance, a covered entity may not:
Require an individual to provide his or her own interpreter.
Rely on a minor child to interpret, except in a life threatening emergency where there is no qualified
interpreter immediately available.
Rely on interpreters that the individual prefers when there are competency, confidentiality or other
concerns.
Rely on unqualified bilingual or multilingual staff.
Use low-quality video remote interpreting services.
Examples of race, color or
national origin discrimination
A physician at a hospital’s emergency department denied a mother with LEP a Spanish
interpreter when she requested language assistance. Instead, the physician used the
mother’s 13-year-old son as the interpreter, while he was being treated for a dog bite.
The hospital also failed to translate or orally explain the discharge instructions in
Spanish.
A nurse ignored an African-American female, who needed medical attention, and made
her wait in the lobby for close to an hour. While she was waiting, a Caucasian male
arrived for his appointment with the same health provider. Although he did not have a
health emergency, he waited less than five minutes before the nurse called him for a
patient room. Computer records verified that the woman had arrived 15 minutes early
for her appointment and that her appointment was scheduled before his. The clinic did
not have a legitimate, nondiscriminatory reason for treating the Caucasian male first.
Discrimination based on an individual’s sex
is prohibited
Covered entities must:
Provide equal access to health care, health insurance coverage, and other
health programs without discrimination based on sex, including pregnancy,
gender identity, or sex stereotypes.
Treat individuals consistent with their gender identity, including with respect to
access to facilities, such as bathrooms and patient rooms.
Discrimination based on an individual’s sex
is prohibited (cont.)
Under Section 1557:
Providers cannot deny or limit sex-specific health services based solely on the
fact that the gender identity or gender recorded for an individual does not align
with the sex of individuals who usually receive those types of sex-specific
services (e.g., denying a transgender male a pap smear or denying a
transgender woman a prostate exam).
Sex specific programs are allowed only if a covered entity can show an
exceedingly persuasive justification for the program. That means the sex-
specific nature of the program must be substantially related to an important
health-related or scientific objective.
For example, a breast cancer program cannot refuse to treat men with breast cancer
solely because its female patients would feel uncomfortable.
Examples of sex discrimination
Multiple staff at a hospital created a hostile environment for a transgender woman
because she was transgender. She was also required to share a room with a male
patient.
A pharmacist would not provide a flu vaccine to a woman and questioned her about
her non-gender-conforming clothing and hairstyle.
Staff at a hospital’s emergency department ridiculed a male patient who arrived after
sustaining injuries in a domestic incident. Staff did not evaluate the patient under a
domestic violence protocol because he was male.
Discrimination based on an individual’s
age is prohibited
Under Section 1557, a covered entity may not exclude, deny or limit benefits and
services based on an individual’s age (e.g., a physician’s practice may not deny a 62-
year-old man health services because it only accepts patients under age 60).
A covered entity may base its actions on age when it is a factor necessary to the
normal operation, or achievement of a statutory objective of a program. Therefore,
this standard does not apply to any age distinction that is authorized under Federal,
State, or local law. For example, age rating in premium rates within a 3:1 ratio in
Marketplace
SM
plans would not violate Section 1557 because it is permitted under the
ACA.
A covered entity may also provide different treatment based on age when the
treatment is justified by scientific or medical evidence (e.g., a physician may decide to
deny a mammogram to a woman under a certain age because recent medical studies
have suggested that mammograms may be more harmful than helpful to young
women), or based on a specialty (e.g., pediatricians are not required to treat adults
and gerontologists not required to treat children).
Discrimination based on an individual’s
disability is prohibited
Under Section 1557, an individual may not be excluded or denied benefits or services because of
a disability.
Under Section 1557, covered entities must take the following steps, unless they would result in
an undue financial burden or would fundamentally alter the program:
Make reasonable changes to policies, procedures and practices where necessary to provide equal
access for individuals with disabilities. For example, a clinic must modify its “no pets” policy to
permit an individual with a disability to be accompanied by a service animal. Additionally, a clinic
must allow an individual with an anxiety disorder to wait for an appointment in a separate, quiet
room if the individual is unable to wait in the patient waiting area because of anxiety.
Make all health programs and activities provided electronically (e.g., through online appointment
systems, electronic billing, information kiosks, etc.) accessible to individuals with disabilities. For
example, a doctor’s office that requires patients to make appointments only online must modify its
procedures so that a person with a disability who cannot use the required method can still make an
appointment.
Ensure newly constructed and altered facilities are physically accessible to individuals with
disabilities.
Provide effective communication with individuals with disabilities, including patients and their
companions.
Auxiliary aids and services
A covered entity must provide auxiliary aids and services to individuals with
disabilities free of charge and in a timely manner when necessary to ensure an equal
opportunity to participate and benefit from the entity’s health programs or activities.
Auxiliary aids and services include, but are not limited to:
*Qualified sign language interpreters *Captioning
*Large print materials
*Screen reader software
*Text telephones (TTYs) *Video remote interpreting services
A covered entity may not:
Require an individual to provide his or her own interpreter.
Rely on a minor child to interpret, except in a life threatening emergency where there is no
qualified interpreter immediately available.
Rely on interpreters that the individual prefers when there are competency, confidentiality
or other concerns.
Rely on unqualified staff interpreters.
Use low-quality video remote interpreting services.
Examples of disability discrimination
A hospital denied a visually impaired woman her request for a consent form in an
alternative format that was accessible to her. The woman informed the hospital that
she could access the information on the form if it was provided in large print or an
accessible electronic format that she could read with her screen reader, but the
hospital provided her with neither.
A hospital provided individuals who are deaf or hard of hearing with sign language
interpreters through an ineffective video relay interpreting device. The hospital
operated the device through an unreliable internet connection, which produced
irregular pauses and blurry images during the individuals’ medical appointments.
Discrimination in health insurance or
other health coverage is prohibited
Under Section 1557, covered entities may not, in providing or administering health-
related insurance or other health-related coverage, discriminate on the basis of race,
color, national origin, sex, age, or disability.
Covered entities may not, on any of the above covered bases:
Deny, cancel, limit or refuse to issue or renew a health insurance plan or other health
coverage.
Deny or limit coverage of a claim, or impose additional cost sharing or other limitations or
restrictions on coverage.
Use discriminatory marketing practices or benefit designs (e.g., plan covers treatment for
eating disorders in women but not men).
Categorical exclusions or limitations in coverage for all health care services related to
gender transition are prohibited.
Section 1557 does not prohibit covered entities from determining whether a
particular health service is medically necessary or otherwise meets applicable
coverage requirements in any individual case.
Exceptions
Employment discrimination is not covered under Section 1557 except in certain
circumstances and for certain employers related to discrimination in employee
health benefit programs.
If the application of the Section 1557 requirement would violate applicable
Federal laws protecting religious freedom and conscience, it is not required.
ENFORCEMENT
21
Federal Enforcement
The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR)
enforces Section 1557 as to programs that receive funding from HHS.
OCR is a neutral, fact-finding agency that receives, investigates and resolves thousands of
complaints from the public alleging discrimination in health services and health coverage.
When OCR finds violations, a covered entity will be required to take corrective actions,
which may include revising policies and procedures, and implementing training and
monitoring programs. Covered entities may also be required to pay compensatory
damages.
When a covered entity refuses to take corrective actions, OCR may undertake proceedings
to suspend or terminate Federal financial assistance from HHS. OCR may also refer the
matter to the U.S. Department of Justice for possible enforcement proceedings.
Section 1557 also provides individuals the right to sue covered entities in court for
discrimination if the program or activity receives Federal financial assistance from HHS or is
a State-based Marketplace℠.
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Email: [email protected]
Office for Civil Rights
U.S. Department of Health and Human Services
REVISED POLICIES & PROCEDURES
Revised policies and procedures
related to Section 1557
Insert slides explaining revised policies and procedures specific to your facility
related to Section 1557, such as notices of nondiscrimination; provision of
language assistance services; provision of auxiliary aids and services; and
grievance coordination procedures.
Policy requirements and samples are included in the Section 1557 final rule.
