ACA Nondiscrimination Notice
(ACA Section 1557)

Summary

This template nondiscrimination notice is designed to satisfy now-superseded rules for federally funded health programs to alert individuals about their rights under Section 1557 of the Patient Protection and Affordable Care Act (ACA). This template includes practical guidance and drafting notes. Update alert: This template was drafted to comply with former requirements under the original 2016 final rules for Section 1557 issued in 81 Fed. Reg. 31,376 (May 18, 2016) (2016 rules). The Section 1557 notice requirements were removed in revised final rules issued in 85 Fed. Reg. 37,160 (June 19, 2020) (2020 rules). In 2024, the Section 1557 regulations were revised again under which new notice requirements will be required, differing substantially from the 2016 final rules. 89 Fed. Reg. 37,522 (May 6, 2024) (2024 rules). These new regulations will require both a notice of nondiscrimination and a notice of availability of language assistance services and auxiliary aids and services. Model language for the notices (including translations for the notice of availability) can be found at HHS, Resources for [Section 1557] Covered Entities. Although the 2024 rules become effective as of July 5, 2024, the notice provisions have delayed compliance dates to November 2, 2024 (notice of nondiscrimination) and July 5, 2025 (notice of availability). Also note that several legal challenges have resulted in delayed enforcement of at least aspects of the new rules. Tennessee v. Becerra, 2024 U.S. Dist. LEXIS 119525 (S.D. Miss. 2024); Florida v. HHS, 2024 U.S. Dist. LEXIS 117619 (M.D. Fla. 2024); Texas and Montana v. Becerra, 2024 U.S. Dist. LEXIS 117573 (E.D. Tex. 2024). For the avoidance of doubt, the summary below and the text and drafting notes of this template describe requirements of the 2016 rules (and the effect of the 2020 rules); they do not address or conform to the newly finalized rules issued May 6, 2024. Section 1557 (42 U.S.C. § 18116) prohibits federally funded health programs and activities (which includes most practitioners and hospitals and many insurers) from discriminating against program or activity participants based on protected characteristics under major federal antidiscrimination laws, including race, color, national origin, sex, age, and disability. HHS overhauled the 2016 final regulations under Section 1557 of the ACA. Among many other changes, the 2020 final regulations eliminated specified notice and language assistance tagline requirements (briefly described below). 85 Fed. Reg. 37,160 (June 19, 2020). The 2020 rules became effective August 18, 2020. Entities covered by Section 1557 may voluntarily continue to furnish this nondiscrimination notice after that date but are not required to adhere strictly to any particular Section 1557 notice requirementsat this time (until the compliance dates for the 2024 rules). The notice may help fulfill notice requirements under the discrimination laws that are incorporated into Section 1557: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments Act of 1972, Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973. Notably, these include: (1) under the Rehabilitation Act, to take appropriate initial and continuing steps to notify individuals that the covered entity does not discriminate on the basis of disability (see 45 C.F.R. § 84.8) and (2) under Title IX, to prominently display a notice of nondiscrimination (on the basis of sex) in certain written materials made available to any covered person (see 45 C.F.R. § 86.9). In addition, the language assistance taglines may help satisfy standards that may still apply under the new rules to ensure meaningful access to limited English proficient (LEP) individuals. 45 C.F.R. § 92.101(a). Also note that, on May 10, 2021, the Biden Administration HHS announced that it would interpret ACA Section 1557 to cover discrimination on the basis of both sexual orientation and gender identity consistent with the Supreme Court's decision in Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) (ruling that Title VII protects employees against discrimination based on sexual orientation and gender identity). 86 Fed. Reg. 27,984 (May 25, 2021); HHS News Release. Former requirements. The now-superseded 2016 final regulations for Section 1557 notice requirements required entities engaged in health programs or activities that receive federal funding (or health programs established by HHS or under Title I of the ACA) to notify individuals that the entity will not discriminate in providing medical coverage, benefits, or services on the basis of race, color, national origin, age, disability, or sex. Covered entities were also required to provide taglines in relevant local languages that alert individuals with limited English proficiency to the availability of language assistance services regarding the notice. (See Drafting Note to Language Assistance Taglines for more information.) This template is based on Department of Health and Human Services model language, issued in former 45 C.F.R. Part 92 Appendix A (see 81 Fed. Reg. 31,472), Covered entities had been required to post and furnish the notice of rights and available resources, along with the taglines for individuals with limited English proficiency translated in at least the top 15 languages spoken in the applicable state, in a conspicuously visible font size at the following locations: • Where other significant publications are posted and along with significant communications (subject to special rules for smaller communications, such as postcards and tri-fold brochures) • In conspicuous physical locations where the covered entity interacts with the public (i.e., where other legal notices are posted for employees) –and– • In a conspicuous location on the covered entity's website accessible from the home page Although it is not entirely clear which communications are covered by the mandate, many plans that are covered entities will include this language in notices containing important information about a participant's benefits, such as explanations of benefits, claim review and denial notices, as well as summary plan descriptions and summaries of material modifications. For a discussion on the Section 1557 rules, including the effect of the 2020 final regulations and the 2024 final regulations, see ACA Nondiscrimination Rules for Health Programs and Activities (ACA Section 1557). For additional ACA practical guidance, see the ACA and Group Health Plan Resource Kit.