Employers with employee health plans subject to the Affordable Care Act (ACA) should take note that, earlier this week, the U.S. Department of Health and Human Services (HHS) announced that its Office for Civil Rights (OCR) will begin enforcing Section 1557 of ACA to prohibit discrimination based on sexual orientation and gender identity. Section 1557 prohibits many health care providers and certain health plans from discriminating against individuals on the basis of race, color, national origin, age, sex, or disability. In setting these prohibitions, the Section makes reference to grounds established under other civil rights statutes. For sex discrimination, those grounds are found in Title IX of the Education Amendments to the Civil Rights Act of 1964 (Title IX). Our team of ACA experts wrote an Alert describing this announcement and its impact in detail.

As the Alert explains, this is the latest in a series of developments rejecting revisions made last year to Section 1557 regulations that had been primarily aimed at narrowing the meaning of sex discrimination. Others include the landmark 2020 Supreme Court decision in Bostock v. Clayton County, GA, 140 S. Ct. 1731 (2020), ruling that Title VII’s prohibition of employment discrimination “because of sex” includes discrimination based on sexual orientation and gender identity, and President Biden’s Executive Order 13988, directing federal agencies to review laws (beyond Title VII) that prohibit discrimination on the basis of sex to determine whether they should also prohibit discrimination based on sexual orientation and gender identity. More such developments are likely from other federal agencies soon.

HHS’s announcement does not mean that OCR will seek to enforce all of the Section 1557 regulatory provisions as if the revisions made last year never took place. There were changes in the regulations that addressed matters other than sex discrimination (for example, narrowing the scope of when Section 1557 applies generally). With respect to sex discrimination, the announcement says that OCR will enforce the rules in a manner consistent with other laws and existing court orders, which sets the stage for future litigation, including a district court’s reconsideration of its injunction against the enforcement of certain sex discrimination provisions in the pre-2020 regulations.

All health care providers subject to Section 1557 should take immediate note of HHS’s latest action and ensure their practices comply with the law as the Department plans to interpret it going forward. Employers also should work with their plan administrators to ensure the plans are being interpreted and applied consistent with HHS’s mandates.