New Nondiscrimination Requirement in Long Term Care Facilities and other Health Programs under Section 1557 Final Rule
What is Section 1557?
On May 6, 2024, the Office for Civil Rights (OCR), the U.S. Department of Health and Human Services (HHS), and the Centers for Medicare & Medicaid Services (CMS) issued Section 1557 Final Rule, which bans discrimination on the basis of race, color, national origin, sex[1], age, or disability in any healthcare program or activity. Prohibitions include protections for people with limited English proficiency, LGBTQI+ patients, and pregnancy or related conditions. Health programs are also prohibited from sex discrimination related to marital, parental, or family status, or an individual’s association with a protected class.
To Whom Does the Final Rule Apply?
Section 1557 of the Affordable Care Act (ACA) applies to all healthcare providers who receive federal financial assistance, including Medicare and Medicaid. Note that the definition of federal financial assistance extends to Medicare Part B funding under the Final Rule.
Key provisions relate to nondiscrimination policies based on the protected classes, access to language assistance free of charge, and accessibility services. The Final Rule also extends non-discrimination requirements to health insurance coverage, the mitigation of discrimination from patient care decision support tools, such as artificial intelligence, and the delivery of telehealth services. There is a temporary and permanent exemption and OCR review process for healthcare providers claiming an applicable federal conscience or religious freedom law right to discriminate.
When does the Final Rule Take Effect?
The Final Rule took effect on July 5, 2024, and healthcare providers subject to the Final Rule have additional time to meet the procedural requirements for compliance. However, multiple states, including Virginia, have sued the HHS over this expansion of the ACA.
On July 3, 2024, the Southern District of Mississippi has suspended the enforcement of Section 1557 with regard to the gender identity provisions, ruling that HHS is not entitled to Chevron deference.[2]
What changes are required under the Final Rule, and by when?
Key requirements for compliance include[3]:
Section 1557 Coordinator and designees. Healthcare providers with fifteen or more employees (“Covered Entities”) must designate a Section 1557 Coordinator (“Coordinator”) within 120 days of the effective date (November 2, 2024). The Coordinator will help the entity follow Section 1557.
Notice of nondiscrimination. Covered entities must provide a notice of nondiscrimination and related information to the public, participants, beneficiaries, enrollees, and applicants of its healthcare program within 120 days of the effective date (November 2, 2024).
Training. Healthcare providers must begin training their staff on these new policies and procedures no later than 300 days from the effective date (May 1, 2025).
Policies and Procedures. Covered entities must write and implement written policies within one year of the effective date (July 5, 2025), including for general nondiscrimination, language access for individuals with limited English proficiency, and effective communication for individuals with disabilities. Entities that have fifteen or more employees must also write and implement grievance procedures for any prohibited conduct under Section 1557.
Notice of availability of language assistance services and auxiliary aids and services. The notice must be written in English and in at least the fifteen most commonly spoken languages by individuals with limited English proficiency in the relevant state(s). Providers must publish this notice within one year of the effective date (July 5, 2025).
Consequences for Noncompliance of Section 1557
The OCR will enforce Section 1557 and the Final Rule through voluntary and then formal compliance proceedings. Failure to meet these requirements may result in suspension or termination of federal funding, or other enforcement proceedings by OCR or on referral to the Department of Justice. Private rights of action to enforce Section 1557 may also be available. As with any new requirement, healthcare settings should implement Final Rule requirements before the compliance dates.
Covered entities should seek legal counsel with any concerns. The attorneys at Goodman Allen Donnelly Williamsburg office.
Peter Mellette, Harrison Gibbs, Elizabeth Coleman are ready to assist with questions about the Final Rule and to work with you to implement these requirements.
For more information, please contact Goodman Allen Donnelly’s Williamsburg office at (757) 259-9200 or ecoleman@goodmanallen.com.
We acknowledge with appreciation Angelina Han (W&M Law Class of ‘2026) for her assistance in preparing this article.
[1] Sex discrimination has expanded to include discrimination based on sex characteristics, pregnancy or related conditions, sexual orientation, gender identity, and sex stereotypes. § 92.101(1)(2).
[2] Tennessee v. Becerra, No. 1:24-cv-161-LG-BWR, 2024 U.S. Dist. Lexis 119525 (S.D. Miss. July 3, 2024).
[3] This is not an extensive list of requirements or provisions. For more information, please see Section 1557 42 U.S. Code § 18116 – Nondiscrimination | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu) and the Section 1557 Final Rule.
