On September 8, 2015, the Department of Health and Human Services (“HHS”) Office of Civil Rights (“OCR”) published a sweeping proposed rule implementing section 1557 of the Patient Protection and Affordable Care Act (“ACA”).  80 Fed. Reg. 54172.  This rule prohibits discrimination in health programs and activities on the basis of race, color, national origin, sex, age, or disability.  Notably, section 1557 is the first law to prohibit sex discrimination in health care programs.

The proposed rule is of critical importance to health insurance issuers, health care providers (including pharmacies and health clinics), and some group health plans.  HHS has read the statutory requirements extremely broadly, potentially sweeping entire entities into the scope of section 1557 when even one plan or program receives any federal funds from HHS. The result is that even self-funded plans that utilize health insurance issuers as third-party administrators may be affected.  The proposed rule also broadly prohibits discrimination on the basis of sex in health programs, and includes significant requirements related to transgender individuals and the treatment of gender dysphoria.

Comments on the proposal are due no later than November 9, 2015. Please see the attached memo for further information.


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