U.S. Department of Health and Human Services Issues Final Rule Expanding Nondiscrimination Protections

On April 26, 2024, the United States Department of Health and Human Services (“HHS”) Office for Civil Rights and the Centers for Medicare & Medicaid Services issued a final rule under Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, age, disability or sex in covered health care programs and activities. Covered health care programs/activities include any that receive federal financial assistance, state-based health insurance exchanges (and all plans offered by issuers that participate in the exchanges and receive federal financial assistance) and HHS health programs and activities. The final rule follows the issuance of the September 14, 2023, proposed rule, which received over 85,000 comments from the public. The effective date is 60 days after the Federal Register publishes the final rule, which is scheduled for May 6, 2024.

Among other things, the final rule:

• Expands the scope of Section 1557 nondiscrimination requirements to include all of HHS’ health programs and activities, including but not limited to those administered by the Indian Health Service, Centers for Medicare & Medicaid Services and the National Institutes of Health.
• Clarifies that Medicare Part B payments constitute federal financial assistance, and therefore, health care providers and suppliers receiving Medicare Part B funds are prohibited from discriminating on the basis of race, color, national origin, age, sex and disability.
• Requires covered entities to proactively let people know that language assistance services and accessibility services are available at no cost to patients. Covered entities are required to provide these notices in prominent locations both physically and on their websites, make them available upon request, and include them with a specific list of communications. The notice must be provided in English and in at least the 15 most common languages spoken by people with limited English proficiency in the state(s) served. In connection with this, covered entities must implement policies and procedures to ensure compliance with the rule and train their staff on compliance with the policies and procedures.
• Clarifies that covered health programs and activities offered via telehealth must also be accessible to individuals with limited English proficiency and individuals with disabilities.

• Applies the nondiscrimination principles under Section 1557 to the use of patient care decision support tools in clinical care, which include automated and non-automated tools, mechanisms, methods and technology to provide patient care. Covered entities must make reasonable efforts to identify patient care decision support tools that use input variables or factors that measure race, color, national origin, sex, age or disability, and to make reasonable efforts to mitigate the risk of discrimination that may result from the use of such tools.
• Requires covered entities to provide and post notice informing individuals of their civil rights under Section 1557. Covered entities with 15 or more employees are also required to have a civil rights grievance procedure and an employee designated to coordinate compliance with the final rule.

Dates of required compliance with the provisions of the final rule vary. An unpublished version of the final rule can be found here.