Affordable Care Act Anti-Discrimination Provisions in Health Programs and Activities

In addition to these new provisions, new covered entities related to discrimination were effective on July 18, including:

• ACA 1557 extends the definition of sex discrimination to include the basis of gender identity. Individuals must be provided equal access to health services without discrimination related to gender or identity.
• Entities can still review for medical necessity, as long as the review is not discriminatory toward these individuals and utilizes a neutral rule or principal. 
• Categorical exclusion or limits on services related to gender transition are discriminatory as well. 
• If compliance with these discrimination provisions requires changes to the health benefit plan design, the rule will apply the first day of the first plan year beginning on or after January 1, 2017.

Title

Description

Provider Responsibility

Additional Information

Notice Requirement

Covered entities must take appropriate initial and continuing steps to notify beneficiaries, enrollees, applicants, and members of the public that they prohibit discrimination on the basis of race, color, national origin, sex, age, or disability in health programs and activities.

Participating providers must add CH&W specific nondiscrimination notice and taglines in significant publications and communications issued to CH&W members.

§92.8

Effective Communication for individuals with disability

Covered entities must take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities. Providers must provide appropriate auxiliary aids and services to individuals with disabilities.

If necessary, participating providers must assess and enhance existing policy and procedures to ensure effective communication with individuals with disabilities.

§ 92.202

Accessibility of electronic and information technology

Covered entities must ensure that their health programs or activities provided through electronic and information technology are accessible to individuals with disabilities, unless doing so would result in undue financial and administrative burdens or a fundamental alteration in the nature of the health programs or activities.

Ensure programs or activities provided through electronic or information technology such as Websites or on-line versions of materials are accessible to individuals with disabilities. If necessary, participating providers must assess and enhance Website compliance with Title II of ADA.

§ 92.204

ACCESS FOR INDIVIDUALS WITH LIMITED ENGLISH PROFICIENCY

Covered entities must take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served or likely to be encountered in its health programs and activities.

Participating providers must assess and enhance if necessary, existing Language Assistance Program to ensure compliance.

§ 92.201

ENFORCEMENT MECHANISMS

The enforcement mechanisms available for and provided under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, or the Age Discrimination Act of 1975 shall apply for purposes of Section 1557.

Participating providers must notify CH&W immediately of a discrimination grievance submitted by a CH&W member and continue to follow CH&W existing issue write-up procedures for detection and remediation of non-compliance. Additionally, participating providers must comply with CH&W, regulatory or private litigation research, investigation and remediation requirements.

§ 92.301

PROCEDURES FOR HEALTH PROGRAMS AND ACTIVITIES CONDUCTED BY RECIPIENTS AND STATE-BASED MARKETPLACES

The procedural provisions applicable to Title VI apply with respect to administrative enforcement actions concerning discrimination on the basis of race, color, national, origin, sex, and disability discrimination under Section 1557 or this part.

§ 92.302

Discrimination prohibited

Except as provided in Title I of the ACA, an individual cannot, on the basis of race, color, national origin, sex, age, or disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any health program or activity to which this part applies.

Participating providers must implement, enhance and reinforce prohibitions on exclusions, denials or discrimination such as in design, operation or behavior of benefits or services on the basis of race, color, national origin, sex, age, or disability. Additionally they must implement:

·         medical necessity reviews for all gender transition services and surgery;

·         program or activity changes to avoid discrimination where necessary;

·         plan design changes, where necessary, such as removing categorical gender or age exclusions;

·         Additionally, providers must remove prohibited categorical exclusion denial reasons and update nondiscrimination policies and procedures to include prohibitions against discrimination on the basis of sex, including gender identity and sex stereotyping

Participating providers can consider implementing:

·         ability to capture gender identity;

·         mandatory provider and staff civil rights and/or cultural sensitivity training.

§ 92.101

Equal program access on the basis of sex

Covered entities must provide individuals equal access to its health programs or activities without discrimination on the basis of sex. Covered entities must treat individuals consistent with their gender identity. A covered entity may not deny or limit health services that are ordinarily or exclusively available to individuals of one sex, to a transgender individual based on the fact that the individual’s sex assigned at birth, gender identity, or gender otherwise recorded is different from the one to which such health services are ordinarily or exclusively available.

§ 92.206

Nondiscrimination in health- related insurance and other health-related coverage

Covered entities shall not, in providing or administering health-related insurance or other health-related coverage, discriminate on the basis of race, color, national origin, sex, age, or disability.

§ 92.207