By: Allen Pinn, Coordinator, Policy

Americans’ ability to access quality health care regardless of their identity is essential in ensuring health equity. Under Section 1557 of the Affordable Care Act (ACA), it is illegal for health care programs and providers that receive federal assistance to discriminate against an individual based on their race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics). Since its inception in 2010, Section 1557 of the ACA has been enforced by the Office for Civil Rights under the Department of Health and Human Services (HHS).

In 2020, the Trump administration issued a rule narrowing the scope of where Section 1557 applies. Notably, gender identity was removed as a protected category, which had previously been upheld by the Obama administration. The National Health Council (NHC) supports the restoration of recognition that Section 1557 applies to commercial health plans, Medicaid, Medicare, and other plans that receive any federal assistance.

The NHC is an avid proponent of antidiscrimination measures for marginalized communities. In particular, the NHC welcomes the additional antidiscrimination provisions which include:

• Affirming gender-based and disability and accessibility antidiscrimination policies;
• Clarifying language access requirements; and
• Including sex characteristics or orientation in coverage and restoring coverage for gender identity or stereotype, and pregnancy in definition of “sex.”

In addition to the above provisions, the NHC strongly supports the restoration of the provision that requires individuals are made widely aware of antidiscrimination policies under 1557 when seeking health care. The NHC believes when patients are aware of their rights, they are better equipped to act, if they have been discriminated against. It is vital that all entities which provide health care, regardless of their size, follow the provisions and protocols of Section 1557.

The NHC also strongly supports the prohibition of discriminatory plan benefit design and marketing practices by insurance companies. The NHC recognizes the importance of including benefit design as an expansion of protections. Reducing barriers to health care is vital in giving individuals more access to health care. Plan design elements such as applying age limits to clinically effective services or requirements for step therapy in drug classes too often prevent patients from receiving equitable access to treatment. Benefit design, being included under 1557 protections, will significantly reduce barriers for patients, especially those with a chronic condition.

The NHC also supports the additional provisions of the proposed rule, including:

• Application of nondiscrimination rules to clinical algorithms
• Expanding telehealth services
• Inclusion of private right of action
• Increasing health care access for people with limited English proficiency

The expansion of 1557 protections are fundamental to closing the health equity gap. The Biden Administration’s decision to prioritize antidiscrimination provisions will ensure more Americans will have access to quality care. The NHC greatly supports the reinstatement of the 2016 policies under 1557 in addition to the newly proposed rules.

Read more of the NHC’s stance and additional recommendations on the Section 1557 proposals here.