United States: ACA Isn't Over Yet: New Section 1557 Nondiscrimination Rules

While the fate of the Affordable Care Act (ACA) remains to be seen, in 2016 the Department of Health and Human Services (HHS) published a final rule implementing ACA Section 1557 nondiscrimination provisions which covered entities need to continue to be mindful of in 2017 (and, possibly, beyond). The final rule prohibits discrimination on the basis of race, color, national origin, sex, age or disability in certain health programs and activities and imposes obligations on covered entities.

The final rule was effective on July18, 2016. However, to the extent the rule requires changes to the design of a benefit plan (e.g., changes to covered benefits) those changes were not required until the first day of the plan year beginning on or after January 1, 2017 (January 1, 2017 for a calendar year plan).

Who Must Comply?
The following are "covered entities" subject to Section 1557 rules:

  • Any "health program or activity" that receives "federal financial assistance" from HHS;
  • Any health program or activity that HHS administers (e.g., CMS, National Institutes of Health, Substance Abuse and Mental Health Services Administration, Health Resources and Services Administration); or
  • Any health program or activity administered by federal or state-run health insurance marketplaces.

A "covered entity" is liable for compliance of "an employee health benefit program" it offers to "its employees and/or their dependents" if:

  • The employer is principally engaged in providing or administering health services, health insurance coverage; or other health coverage (e.g., a hospital);
  • The employer receives federal financial assistance, a primary objective of which is to fund the employee health benefit program (e.g., a company which sponsors a retiree prescription drug plan and receives Medicare Part D subsidies); or
  • The employer is not principally engaged in providing or administering health services or insurance, but operates a health program or activity (that is not an employee health benefit program) that receives federal financial assistance.

Section 1557 Compliance.
In order to assist with compliance, here is a general ACA Section 1557 self-compliance checklist:

  • Do not discriminate with respect to benefit design or coverage on the basis of race, color, national origin, age, disability and sex (with sex discrimination defined broadly to include discrimination based on an individual's sex, pregnancy, childbirth or related medical condition, gender identity, sex stereotyping (but not sexual orientation)). It should be noted, however, that under a December 31, 2016 nationwide injunction issued by a U.S. District Court judge in the Northern District of Texas, HHS is not allowed to enforce the prohibition in the regulations against sex discrimination in the context of gender identity or termination of pregnancy.
  • Do not deny or limit health services that are ordinarily or exclusively available to individuals of one sex on the basis of their gender identity or identification as transgender (although HHS is enjoined from enforcing this under the nationwide injunction discussed above).
  • Although the regulations do not mandate coverage for gender transition, they prohibit having a categorical exclusion for all health services related to gender transition. The nationwide injunction only extends to HHS and not to other agencies such as the EEOC.
  • Adopt grievance procedures that allow for resolution of complaints received. A model grievance procedure is available at http://www.hhs.gov/sites/default/files/section1557-sample-grievance-procedure.pdf.
  • Designate at least one employee to coordinate compliance with and investigate complaints of noncompliance with the requirements of Section 1557.
  • Provide meaningful access to health programs and activities to individuals with limited English proficiency (LEP) and disabilities.
  • Provide free qualified interpreters and translated documents.
  • Ensure that all newly constructed or altered facilities are accessible to individuals with disabilities.
  • Modify policies, practices and procedures when such modifications are necessary to ensure individuals with disabilities have equal opportunity to participate in and benefit from health programs and activities (e.g., allow paper-based enrollment if an individual with a visual impairment cannot view the enrollment material on the website).
  • Ensure effective communication with those with disabilities (e.g., materials in large print, screen reader software, having text telephone services (TTYs), assistive listening services, braille materials).
  • Development of a language access plan is encouraged by the regulations, but not required.
  • Post a nondiscrimination notice on the company website, assessable from the home page (required as of October 16, 2016). An HHS model notice is available at http://www.hhs.gov/sites/default/files/sample-ce-notice-english.pdf.
  • Provide the nondiscrimination notice on an ongoing basis in "significant publications or communications" that are not small in size.
  • Post taglines (short statements written in non-English languages informing individuals of the availability of the entity's language assistance services) on the company website in the top 15 languages spoken by individuals with limited English proficiency in the state or states in which the company operates. For a national employer, the top 15 languages are Spanish, Chinese, Vietnamese, Korean, Tagalog, Russian, Arabic, French Creole, Portuguese, French, Cantonese, Mandarin, Polish, Japanese and Italian. HHS created model taglines in 64 non-English languages.
  • Include the 15 taglines in all significant publications that are not small in size.
  • Small significant publications (brochures, postcards, etc.) must include a nondiscrimination statement and at least two taglines. A sample nondiscrimination statement is provided in the final regulations.
  • Provide notice to HHS assuring compliance with Section 1557 when applying for federal financial assistance. HHS Form 690, Assurance of Compliance, includes a statement that the entity submitting the form is operating its health programs and activities in compliance with Section 1557 and will continue to do so while it receives federal financial assistance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.