Last year, the HHS Office for Civil Rights (OCR) issued a final rule implementing Section 1557 of the Affordable Care Act, which prohibits discrimination based on race, color, national origin, sex, age, and disability in certain health programs and activities. Physicians and other qualified health care professionals who receive federal financial assistance – including Medicaid and Medicare Part B payments – are subject to this final rule. Importantly, the new rule clarifies that if a practitioner accepts federal funding, the practitioner must comply with Section 1557 with respect to all patients, not just the patients who are connected to the receipt of federal financial assistance (e.g., Medicare beneficiaries). This article addresses key provisions of the final rule, which went into effect in 2024.
Section 1557 Final Rule
Language assistance and services: Allergists covered by the rule must assist people with limited English proficiency (LEP) by implementing targeted policies and procedures that detail the allergist’s approach to providing patient access to language assistance services (LAS). LAS can include – but is not limited to – oral or written language assistance. The goal is to assist patients and/or their companions with LEP to gain meaningful access to health care services.
The previous Section 1557 rule outlined four factors to determine whether an allergist or other practitioner is taking “reasonable steps to provide meaningful access.” These factors included (1) the population size of LEP individuals in the service area, (2) how often allergists come into contact with LEP individuals in practice, and (3) the importance/nature of the practitioner’s services. While this requirement largely remains unchanged from the previous rule, the new Section 1557 rule omits the fourth factor – the cost of providing LAS balanced with the resources available to the allergist – as an explicit consideration.
Allergists who receive federal financial assistance (e.g., allergists who accept Medicare and Medicaid payments) must also provide a public, detailed notice that these services are available as needed. In addition to English, the notice must be published in the 15 most common languages spoken by people with LEP within the state where the allergist is located. CMS compiled a list of the top non-English languages by state.
Telehealth services: The final rule clarifies that recipients of federal financial assistance, including practitioners, must provide care through telehealth in a manner that complies with Section 1557. This means allergists who accept Medicare and Medicaid payments must deliver telehealth services without discriminating against patients based on race, color, national origin, sex, age, or disability. The new rule expands protections for those with LEP (including in the use of telehealth) compared to prior versions of the law.
Patient care decision support tools: Under the final rule, allergists who receive federal financial assistance are prohibited from discriminating against any individual on the basis of race, color, national origin, sex, age, or disability through the discriminatory use of patient care decision support tools. This means that these tools cannot be used in a way that leads to discriminatory outcomes against patients — essentially requiring allergists to ensure their decision support tools are not biased and do not result in discriminatory treatment. The final rule defines patient care decision support tools as “any automated or non-automated tool, mechanism, method, technology, or combination thereof used by a covered entity to support clinical decision-making in its health programs or activities.” This definition is broad and includes any tool — including but not limited to artificial intelligence, machine learning, or even flow charts — that a practitioner or other provider may use to assess the health status of a patient, recommend a course of treatment, or anything else that impacts clinical decision-making.
Discrimination on the basis of sex: The final rule clarifies that discrimination on the basis of sex includes (1) discrimination on the basis of sexual orientation, (2) discrimination on the basis of sex stereotypes, (3) discrimination on the basis of sex characteristics, and (4) discrimination on the basis of pregnancy. Notwithstanding this final rule, an allergist is permitted to limit or decline the provision of any health care service if the allergist has a legitimate, nondiscriminatory reason for denying or limiting that service (e.g., if a health service is not clinically appropriate for a particular individual who is pregnant).
Policies and staff training: Covered allergists with 15 or more employees are required to (1) adopt a grievance procedure to include in their policies and procedures manual and (2) designate a Section 1557 Coordinator to coordinate compliance with Section 1557 requirements. Covered allergists must train all relevant staff within 30 days of implementing their written policies and procedures. Relevant staff is defined broadly and includes any permanent or temporary employee that has decision-making authority, is involved in billing or collections matters, or directly interacts with patients or members of the public.
Trump Administration’s views on Section 1557: Since his inauguration on January 20, President Trump has issued a series of executive orders (EOs), including three that revoke Biden-era guidance which extended Section 1557 nondiscrimination protections to cover gender identity. These protections have faced ongoing shifts since the enactment of Section 1557 in 2010, with each new administration reversing the stance of its predecessor. The new Trump Administration has returned to the position held during President Trump’s previous term, asserting that protections against discrimination “on the basis of sex” do not encompass gender identity. We will continue to monitor any further attempts to roll back protections under Section 1557 and update you if there are any additional changes made by the Trump Administration.
The Advocacy Council – ADVOCATING FOR ALLERGISTS AND THEIR PATIENTS.
