The ACA's Provision on Nondiscrimination Takes Shape

The Department of Health and Human Services has issued far‐reaching regulations to implement the nondiscrimination requirement of the Affordable Care Act. Now commonly called “Section 1557,” this ACA provision prohibits discrimination by “any health program or activity, any part of which is receiving Federal financial assistance,” on grounds prohibited under previously enacted federal antidiscrimination statutes. The DHHS Office of Civil Rights enforces Section 1557. These new regulations and accompanying commentary give warning of the standards the agency will use in its enforcement efforts. Courts will also give some deference to the DHHS regulations in interpreting the statute in lawsuits by individuals claiming damages against covered health care providers for illegal discrimination under Section 1557. Three central issues are the nature of the rights created in Section 1557 and their relation to the listed federal antidiscrimination statutes, the sorts of health care programs and activities that are covered by Section 1557, and the definition of the personal characteristics, including sexual orientation and gender identity, against which discrimination is prohibited.