HHS Announces New Rule to Strengthen Nondiscrimination Protections and Advance Civil Rights in Health Care

Long Term Care; Medicare; Health Information Technology

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) and the Centers for Medicare & Medicaid Services (CMS) issued a final rule under Section 1557 of the Affordable Care Act (ACA) advancing protections against discrimination in health care. The purpose of the rule, entitled Nondiscrimination in Health Programs and Activities, is to restore protections against discrimination on the basis of race, color, national origin, sex, age, and disability. The rule also reduces language access barriers, expands physical and digital accessibility, and tackles bias in health technology. 

Specifically, the rule includes the following elements: 

  1. Holds HHS’ health programs and activities to the same nondiscrimination standards as recipients of Federal financial assistance. 
  2. For the first time, the Department will consider Medicare Part B payments as a form of Federal financial assistance for purposes of triggering civil rights laws enforced by the Department, ensuring that health care providers and suppliers receiving Part B funds are prohibited from discriminating on the basis of race, color, national origin, age, sex, and disability. 
  3. Requires covered health care providers, insurers, grantees, and others, to proactively inform people that language assistance services are available at no cost to patients. 
  4. Requires covered health care providers, insurers, grantees, and others to inform people that accessibility services are available to patients at no cost. 
  5. Clarifies that covered health programs and activities offered via telehealth must also be accessible to individuals with limited English proficiency, and individuals with disabilities. 
  6. Protects against discrimination by codifying that Section 1557’s prohibition against discrimination based on sex includes LGBTQI+ patients. 
  7. Respects federal protections for religious freedom and conscience and makes clear that recipients may simply rely on those protections or seek assurance of them from HHS. 
  8. Respects the clinical judgment of health care providers. 
  9. Protects patients from discriminatory health insurance benefit designs made by insurers. 
  10. Clarifies the application of Section 1557 nondiscrimination requirements to health insurance plans. 

Given the increasing use of artificial intelligence (AI) in health programs and activities, the rule clarifies that nondiscrimination in health programs and activities continues to apply to the use of AI, clinical algorithms, predictive analytics, and other tools.  

Specifically, the rule: 

  1. Applies the nondiscrimination principles under Section 1557 to the use of patient care decision support tools in clinical care. 
  2. Requires those covered by the rule to take steps to identify and mitigate discrimination when they use AI and other forms of decision support tools for care. 

This rule applies to covered entities, which per HHS’ definition, includes any health program or activity receiving federal funds from HHS, any program or activity administered under Title I of the ACA, and health insurance marketplace participants.  

This means that nursing homes, ID/DD providers, and Medicare Advantage plans are subject to this Final Rule. 

A complete summary of the rule is available in the federal register. HHS also published a fact sheet outlining key elements of the rule. This rule will introduce new requirements for nursing homes and ID/DD providers. AHCA will share a more detailed summary in the coming weeks that outlines the regulatory impact on LTC providers and time frame for implementation. 

Questions? Contact regulatory@ahca.org​.