ACA Now

Implementation Status

On August 6, 2012, HHS’s Office of Civil Rights issued a Q&A on section 1557 and specifically regarding the agency’s clarification that this section prohibits discrimination on the basis of gender identity and sex stereotyping. HHS indicates that it will issue further guidance on the implementation of this section.

On July 31, 2013, HHS posted a request for information (RFI) to inform rule-making under this section regarding nondiscrimination in certain health programs or activities. In particular, HHS seeks information on a number of questions that span three major categories, namely: helping HHS to understand the current landscape; ways to access to health programs and activities; and compliance and enforcement approaches.

On May 26, CCIIO released FAQs on ACA cost-sharing limitations (also see May 8 FAQs) and non-discrimination provisions.

On April 29, HHS’ Office of Civil Rights sent a proposed rule on “Nondiscrimination under the ACA” to OMB for regulatory clearance.

On Sept. 7, HHS issued a proposed rule (fact sheet; press release; Q&A) on nondiscrimination in federal healthcare programs. The rule would apply a range of nondiscrimination requirements, including barring prohibited forms of discrimination and ensuring access to facilities, medical care and language services, to “covered entities” receiving any federal healthcare funding. Thus the provisions would apply to 133,000 Medicare and Medicaid-participating providers, Federally Facilitated and State-based Marketplaces, laboratories, State Medicaid agencies, QHP issuers, nearly all licensed physicians and HHS programs and agencies. Comments are due by Nov. 6.

On Apr. 25, CMS released an extensive final rule on Medicaid and CHIP managed care (press release; add’l fact sheets available here under “final rule”) that seeks to acknowledge increased enrollment in managed care delivery systems and – to facilitate beneficiaries’ transitions and care management across product lines – promote cross-market alignment with Marketplace Qualified Health Plans (QHPs) and Medicare Advantage (MA). The final rule addresses these provisions of the ACA.

2016

On May 13, HHS’ Office of Civil Rights (OCR) issued its final rule (fact sheet; FAQs) on nondiscrimination in federal healthcare programs and activities, which implements section 1557 of the ACA.

On June 13, CMS released a proposed rule on hospital and critical access hospital conditions of participation that address, among other issues, nondiscrimination protections.  

On Aug. 23, a lawsuit by several Catholic providers and five state attorneys general challenged HHS regulations implementing section 1557, the nondiscrimination provision of the ACA. The complaint alleges that the regulations force the plaintiff professionals and facilities to provide gender transition services against their medical judgment and religious beliefs. It also asserts that the regulations prohibit discrimination on the basis of “termination of pregnancy” and fail to provide an exclusion for abortions, thus requiring coverage of abortions.

On a related note, on Dec. 13, 2016, CMS issued an informational bulletin addressing issues pertaining to ensuring program integrity in Medicaid personal care services, a form of HCBS. Also on a related note, on Dec. 15, 2016, CMS released FAQs concerning Medicaid Beneficiaries in Home and Community-Based Settings who exhibit unsafe wandering or exit-seeking behavior.

2017 

On a related note, in early May, CMS issued an informational bulletin notifying states that it will extend the transition period after which states must demonstrate compliance with the HCBS settings criteria outlined in the 2014 HCBS final rule. Previously set to end on March 17, 2019, five years after the effective date of the rule, CMS says the transition period will be extended an additional three years until March 17, 2022.