Updated nondiscrimination regulations that take effect July 5 under the Affordable Care Act’s Section 1557 will advance and restore protections for pregnant and LGBTQI+ individuals who participate in health programs or activities that receive federal financial assistance. These include state-based health insurance exchanges and Department of Health and Human Services’ programs and activities such as Medicaid and Medicare.
The final regulations, issued by the HHS on April 26, also (1) include new provisions to ensure access for individuals with limited English proficiency, (2) implement new requirements for the nondiscriminatory use of artificial intelligence in patient care and (3) clarify that the nondiscrimination requirements apply to health programs and activities provided through telehealth services.
Dental practices and other health care entities that participate in certain federal programs are considered covered entities and must comply with Section 1557’s established rules by specific deadlines. For example, covered entities must post required nondiscriminatory notices by Nov. 5, 2024, while other provisions require compliance by March 2025 or later.
New resources from CDA will help member dentists comply with the regulations.
Services cannot be denied or limited based on gender identity, pregnancy
Protections for LGBTQI+ and pregnant individuals have undergone changes and legal challenges since 2016. One final regulation reinstates these protections and clarifies that “sex discrimination includes discrimination on the basis of sex stereotypes; sex characteristics, including intersex traits; and pregnancy or related conditions,” according to the HHS’s Section 1557 fact sheet.
Entities covered by Section 1557:
- Cannot deny or limit services based on gender identity or sex assigned at birth.
- Cannot adopt a policy for treating individuals differently based on their sex.
- Cannot deny or limit services sought for gender transition or other gender-affirming care based on sex assigned at birth or gender identity.
Informing individuals about available language assistance services
Covered entities must inform individuals participating in applicable programs and activities that language assistance services are available.
“These notices must be communicated to individuals with disabilities as effectively as they are to individuals without disabilities,” the HHS’s fact sheet states. Entities must post the notices in prominent physical locations as well as on their websites and make them available upon request.
CDA’s regulatory compliance experts developed and published the required notices in English and 15 languages that people with limited English proficiency most commonly speak in California.
The notice of availability of language assistance services must be posted and made available by July 5, 2025. CDA members can access these language assistance notices with their member login.
Identifying and mitigating discriminatory use of AI
Under the final rule, covered dental practices and other entities must make reasonable efforts to identify and “mitigate the risk of discrimination” that may result from the use of tools that help them make patient care decisions.
Artificial intelligence is one such tool, but all automated or nonautomated tools, methods and technologies should be examined for their potential to unlawfully discriminate against an individual based on race, color, national origin, sex, age or disability.
The National Law Review writes that the HHS’s Office for Civil Rights may take a covered entity’s size and resources into consideration when determining if the entity has made reasonable effort to identify discriminatory tools, but the OCR may consider other factors, such as whether the tool’s developer provided the covered entity with information about the potential for discrimination and whether the entity has a process for evaluating the support tools it adopts or uses.
Covered entities have until March 2, 2025, (300 days from the rule’s effective date) to comply with this support tool requirement.
Required staff training on policies and procedures
Covered dental practices and other entities must have policies for providing language assistance services for people with limited-English proficiency and to ensure people with disabilities receive effective communication and reasonable modifications.
To help improve compliance, entities must then train their staff on these policies and procedures. This training must be completed no later than March 5, 2025.
Use CDA’s compliance checklist, Q&A and required notices
New CDA resources explain the requirements for dental practices and include a compliance checklist with instructions. Other resources include the required “discrimination is against the law” notices and notice of available language assistance services in 16 languages. Access the Section 1557 compliance resources with your CDA login.