HHS Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972 (May 10, 2021)
HHS has announced that it will interpret and enforce Affordable Care Act (ACA) Section 1557’s prohibition on discrimination “on the basis of sex” to include discrimination on the basis of sexual orientation and gender identity. As background, HHS issued final regulations in 2020 that repealed significant portions of prior Section 1557 regulations that it considered duplicative of or inconsistent with other federal nondiscrimination rules (see our Checkpoint article). However, a federal trial court order blocked enforcement of the provisions of the 2020 regulations that removed gender identity and sex stereotyping from the nondiscrimination protections, and ruled that the prior regulations’ more expansive definitions would remain in effect while litigation continues (see our Checkpoint article). Another federal trial court issued a broader preliminary injunction that blocked the same provisions, as well as enforcement of the 2020 regulations’ Title IX religious exemption, which excuses certain religious organizations from Title IX’s nondiscrimination mandate if the mandate’s application would be inconsistent with the organization’s religious tenets (see our Checkpoint article).
HHS explains that the current interpretation is consistent with Title IX and the U.S. Supreme Court’s decision in Bostock that discrimination based on sex (for Title VII purposes) encompasses discrimination based on sexual orientation or gender identity (see our Checkpoint article). HHS states that the interpretation will guide the agency in processing complaints and conducting investigations but that, in enforcing Section 1557, it will comply with the Religious Freedom Restoration Act and applicable court orders.
EBIA Comment: The impact of this interpretation remains to be seen as litigation continues in cases challenging the 2020 regulations. Other provisions of the regulations, including those narrowing Section 1557’s applicability, repealing the nondiscrimination protections related to termination of a pregnancy, and eliminating the requirement for non-English notices and taglines for certain health plan communications, were not addressed by the HHS notice. For more information, see EBIA’s Health Care Reform manual at Section XXXIV.A (“Section 1557 Nondiscrimination Provisions: Grounds Prohibited Under Federal Laws”) and EBIA’s Group Health Plan Mandates manual at Section XXI.M.1 (“Interaction of Title VII and Section 1557”). See also EBIA’s Self-Insured Health Plans manual at Section XIII.D.5 (“Section 1557 Nondiscrimination: Nondiscrimination in Health Programs and Activities”) and EBIA’s Consumer-Driven Health Care manual at Section XXV.G.5.e (“Section 1557 Requirements”).
Contributing Editors: EBIA Staff.