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                              Section 1557 of the Patient Protection and Affordable Care Act


    

    

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      HHS Nondiscrimination NoticeText resize icon

                    




Section 1557 of the Patient Protection and Affordable Care Act








  
  
    

  
      



The Office for Civil Rights (OCR) enforces Section 1557 of the Affordable Care Act (Section 1557), which prohibits discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics), in covered health programs or activities. 42 U.S.C. 18116.

**Where can I find more information?**

OCR has issued a Notice of Proposed Rulemaking (NPRM) to revise the implementing regulations for Section 1557.  For more information on this, please visit https://www.federalregister.gov/public-inspection/2022-16217/nondiscrimination-in-health-programs-and-activities

Section 1557 NPRM (July 25, 2022)
	Notification of Interpretation of Section 1557 and Title IX (May 25, 2021)
	Current Section 1557 implementing regulation (June 19, 2020)**What should I do if I believe I have been discriminated against under Section 1557?**

You can file a complaint with OCR if you have been subjected to discrimination on the basis of race, color, national origin, sex, age, or disability in a covered health program or activity.
	We will promptly inform you as to whether we have jurisdiction to investigate your complaint. If we determine that we do not have jurisdiction over the entity named in your complaint, but we believe a different federal agency may have jurisdiction, we will forward the complaint to the appropriate agency.
	If you are not sure about whether OCR has jurisdiction to investigate your complaint, file a complaint with our office and we will help answer your questions through the complaint intake process and our initial evaluation of the complaint. For more information on how to file a complaint, click here.
	Please note that Section 1557 prohibits retaliation for filing a discrimination complaint. When investigating a complaint, OCR informs all recipients of the prohibition on retaliation. In addition, during the complaint process, OCR will seek the complainant's consent to reveal his/her identity or identifying information, if necessary, to investigate the complaint. Consent is voluntary, and it is not always needed to investigate a complaint. Failure to provide consent, however, may make it difficult to investigate some aspects of the complaint.**How does OCR resolve my complaint?**

If OCR determines that it has jurisdiction, OCR will investigate the complaint or, in some cases, refer the complaint to an agency with joint jurisdiction. When OCR identifies a violation or compliance concern, it will work with the recipient to achieve compliance with the law. Depending on the scope of the changes required, complaints can be resolved through voluntary compliance letters or agreements requiring the recipient to develop policies, monitoring, notification, and training, which also resolve the specific incidents alleged in the complaint. If voluntary compliance cannot be achieved, OCR can issue a formal findings letter and refer the case to DOJ or begin administrative proceedings to revoke federal funds.

1557 RULEMAKING

**Issuance of the 2022 Notice of Proposed Rulemaking**

On July 25, 2022, HHS OCR issued a Notice of Proposed Rulemaking to revise its 1557 regulations.  The previous version of this rule limited its scope to cover less programs and services limiting nondiscrimination protections. This proposed rule importantly solidifies protections against discrimination on the basis of sex including sexual orientation and gender identity consistent with the U.S. Supreme Court’s holding in *Bostock v. Clayton County*.  Strengthening these rules is a significant achievement for the Biden-Harris Administration and promotes gender and health equity for communities of color, women, LGBTQI+ individuals, people with disabilities, persons with limited English proficiency (LEP), and older people.

The Section 1557 Notice of Proposed Rulemaking (NPRM) seeks to address gaps identified in prior regulations in order to advance protections under this rule.  It:

Reinstates the scope of Section 1557 to cover HHS’ health programs and activities.
	Clarifies the application of Section 1557 nondiscrimination requirements to health insurance issuers that receive federal financial assistance.
	Aligns regulatory requirements with Federal court opinions to prohibit discrimination on the basis of sex including sexual orientation and gender identity.
	Makes clear that discrimination on the basis of sex includes discrimination on the basis of pregnancy or related conditions, including “pregnancy termination.”
	Ensures requirements to prevent and combat discrimination are operationalized by entities receiving federal funding by requiring civil rights policies and procedures.
	Requires entities to give staff training on the provision of language assistance services for individuals with limited English proficiency (LEP), and effective communication and reasonable modifications to policies and procedures for people with disabilities.
	Requires covered entities to provide a notice of nondiscrimination along with a notice of the availability of language assistance services and auxiliary aids and services.
	Explicitly prohibits discrimination in the use of clinical algorithms to support decision-making in covered health programs and activities.
	Clarifies that nondiscrimination requirements applicable to health programs and activities include those services offered via telehealth, which must be accessible to LEP individuals and individuals with disabilities.
	Interprets Medicare Part B as federal financial assistance.
	Refines and strengthens the process for raising conscience and religious freedom objections.While the Department is undertaking this rulemaking, both the statute and the current regulation are in effect. If you believe that you or another party has been discriminated against on the basis of race, color, national origin, sex, age, or disability, visit the OCR complaint portal to file a complaint online.

HHS encourages all stakeholders, including patients and their families, health plans, health care providers, health care professional associations, consumer advocates, and government entities, to submit comments through regulations.gov.

Public comments on the NPRM are due 60 days after publication of the NPRM in the Federal Register.  The Department will also be conducting a Tribal consultation meeting on August 31, 2022 from 2:00 p.m. to 4:00 p.m. Eastern Daylight Time. To participate, you must register in advance at https://www.zoomgov.com/meeting/register/vJIsfu-rqzksEl2T8gUp_lDrWBqkU0223CY.

The NPRM may be viewed or downloaded at: https://www.federalregister.gov/public-inspection/2022-16217/nondiscrimination-in-health-programs-and-activities

Read the Press ReleaseThe Press Release is available in the following languages:

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Read the Fact SheetThe Fact Sheet is available in the following languages:

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繁體中文 (Chinese - Traditional)

简体中文 (Chinese - Simplified)

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Русский (Russian)

العربية (Arabic)

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Polski (Polish)

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**Issuance of the 2020 Final Rule**

On June 12, 2020, HHS OCR announced a final rule revising its Section 1557 regulations.  Read the final rule |  Read the Fact Sheet

Executive Summary of the Final Rule

Español (Spanish), 繁體中文 (Chinese), 简体中文 (Simplified Chinese), Tiếng Việt (Vietnamese), 한국어 (Korean), Tagalog (Tagalog – Filipino)

**Update (December 21, 2022)******

On May 25, 2021, the HHS Office for Civil Rights published a Notice regarding the application of *Bostock v. Clayton County*, GA, 140 S. Ct. 1731 (2020), to Section 1557 of the Affordable Care Act.  This Notice is entitled “Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972.”

On October 14, 2022, in Neese v. Becerra, 2:21-CV-163-Z (N.D. Tex.), the Federal District Court for the Northern District of Texas certified a class of “all healthcare providers subject to 1557 of the Affordable Care Act.”  On November 22, 2022, the court entered final judgment in the case.  In its Judgment, the court set aside the Notice and stated that “Plaintiffs and members of the certified class need not comply with the interpretation of ‘sex’ discrimination” articulated in the Notice.  The court also declared that, as applied to the certified class, the prohibition on “sex” discrimination in Section 1557 does not include discrimination on the basis of sexual orientation or gender identity.  OCR will continue to receive complaints and conduct investigations under its authorities prohibiting sex discrimination to the full extent not prohibited by court order.

**Update (May 10, 2021)**

On June 15, 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 (Title VII)’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity. *Bostock v. Clayton County, GA*, 140 S. Ct. 1731 (2020). The *Bostock* majority concluded that the plain meaning of “because of sex” in Title VII necessarily included discrimination because of sexual orientation and gender identity. *Id.* at 1753-54.

Since *Bostock*, two federal circuits have concluded that the plain language of Title IX of the Education Amendments of 1972’s (Title IX) prohibition on sex discrimination must be read similarly. *See Grimm v. Gloucester Cnty. Sch. Bd*., 972 F.3d 586, 616 (4th Cir. 2020), *as amended* (Aug. 28, 2020), *reh’g en banc denied*, 976 F.3d 399 (4th Cir. 2020), *petition for cert. filed*, No. 20-1163 (Feb. 24, 2021); *Adams v. Sch. Bd. of St. Johns Cnty*., 968 F.3d 1286, 1305 (11th Cir. 2020), *petition for reh’g en banc pending*, No. 18-13592 (Aug. 28, 2020). In addition, on March 26, 2021, the Civil Rights Division of the U.S. Department of Justice issued a memorandum to Federal Agency Civil Rights Directors and General Counsel concluding that the Supreme Court’s reasoning in *Bostock*applies to Title IX of the Education Amendments of 1972. As made clear by the Affordable Care Act, Section 1557 prohibits discrimination “on the grounds prohibited under . . . Title IX.” 42 U.S.C. § 18116(a).

Consistent with the Supreme Court’s decision in *Bostock*and Title IX, beginning May 10, 2021, OCR will interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. This interpretation will guide OCR in processing complaints and conducting investigations, but does not itself determine the outcome in any particular case or set of facts.

In enforcing Section 1557, as stated above, OCR will comply with the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb *et seq*., and all other legal requirements. Additionally, OCR will comply with all applicable court orders that have been issued in litigation involving the Section 1557 regulations, including *Franciscan Alliance, Inc. v. Azar*, 414 F. Supp. 3d 928 (N.D. Tex. 2019); *Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs.*, 485 F. Supp. 3d 1 (D.D.C. 2020); *Asapansa-Johnson Walker v. Azar*, No. 20-CV-2834, 2020 WL 6363970 (E.D.N.Y. Oct. 29, 2020); and *Religious Sisters of Mercy v. Azar*, No. 3:16-CV-00386, 2021 WL 191009 (D.N.D. Jan. 19, 2021).

OCR applies the enforcement mechanisms provided for and available under Title IX when enforcing Section 1557’s prohibition on sex discrimination. 45 C.F.R. § 92.5(a). Title IX’s enforcement procedures can be found at 45 C.F.R. § 86.71 (adopting the procedures at 45 C.F.R. §§ 80.6 through 80.11 and 45 C.F.R. Part 81).

Read the Federal Register Notice
	Read the Press Release**Update (May 25, 2022)**

On May 16, 2022, the court in *Christian Employers Alliance v. EEOC*, No. 1:21-cv-00195 (D.N.D.), issued a preliminary injunction against HHS and EEOC. The preliminary injunction prohibits HHS from interpreting or enforcing Section 1557 of the ACA and any regulations against the plaintiffs’ present or future members in a manner that would require them to provide, offer, perform, facilitate, or refer for gender transition services or in a manner that restricts or compels their speech on gender identity issues. The order can be found here:

Order (May 16, 2022)**Update (Feb. 1, 2021)**

On January 19, 2021, the U.S. District Court for the District of North Dakota issued an order in the consolidated cases Religious Sisters of Mercy v. Azar, and Catholic Benefits Assoc'n v. Azar, No. 3:16-cv-00386, holding that the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq., entitles named plaintiffs to permanent injunctive relief from the provision or coverage of gender-transition procedures under Section 1557 of the Affordable Care Act, 42. U.S.C. § 18116(a), or any implementing regulations.  The order may be found here:

Memorandum Opinion and Order (Jan. 19, 2021)**Update (Sept. 15, 2020)**

On October 15, 2019, the U.S. District Court for the Northern District of Texas issued an order in Franciscan Alliance, Inc. v. Burwell, No. 7:16-cv-00108, which vacated portions of HHS's 2016 rule implementing Section 1557.  The order and accompanying decision may be found here:

Memorandum Opinion and Order (Oct. 15, 2019)
	Clarifying Order (Nov. 21, 2019)On August 17, 2020, the U.S. District Court for the Eastern District of New York issued an order in Asapansa-Johnson Walker v. Azar, No. 1:20-cv-02834, staying portions of the 2020 Final Rule's repeal of portions of the 2016 rule and preliminarily enjoining HHS from enforcing the repeal of those provisions. The order may be found here:

Memorandum Opinion and Order (Aug. 17, 2020)On September 2, 2020, the U.S. District Court for the District of Columbia issued an order in Whitman-Walker Clinic v. HHS, No. 1:20-cv-01630, preliminarily enjoining HHS from enforcing portions of the 2020 Final Rule.  The order and accompanying decision may be found here:

Memorandum Opinion (Sept. 2, 2020)
	Order (Sept. 2, 2020)On October 29, 2020, the U.S. District Court for the Eastern District of New York issued an order in Asapansa-Johnson Walker v. Azar, No. 1:20-cv-02834, staying/enjoining additional portions of the 2020 Final Rule's repeal of portions of the 2016 rule. The order may be found here:

Memorandum Opinion and Order (Oct. 29, 2020)

                    
  


Content created by Office for Civil Rights (OCR) Content last reviewed November 15, 2023Back to top
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