PART 92—NONDISCRIMINATION IN HEALTH PROGRAMS OR ACTIVITIES Authority: 42 U.S.C. 18116. Source: 89 FR 37692, May 6, 2024, unless otherwise noted. Subpart A—General Provisions § 92.1 Purpose and effective date. (a) Purpose. (b) Effective date. Table 1 to Paragraph ( b Section 1557 Date by which covered entities must comply § 92.7 Within 120 days of July 5, 2024. § 92.8 Within one year of July 5, 2024. § 92.9 Following a covered entity's implementation of the policies and procedures required by § 92.8, and no later than one year of July 5, 2024. § 92.10 Within 120 days of July 5, 2024. § 92.11 Within one year of July 5, 2024. § 92.207(b)(1) through (5) For health insurance coverage or other health-related coverage that was not subject to this part as of July 5, 2024, by the first day of the first plan year (in the individual market, policy year) beginning on or after January 1, 2025. § 92.207(b)(6) By the first day of the first plan year (in the individual market, policy year) beginning on or after January 1, 2025. § 92.210(b) and (c) Within 300 days of July 5, 2024. § 92.2 Application. (a) Except as otherwise provided in this part, this part shall apply to: (1) Every health program or activity, any part of which receives Federal financial assistance, directly or indirectly, from the Department; (2) Every health program or activity administered by the Department; and (3) Every health program or activity administered by a title I entity. (b) The provisions of this part shall not apply to any employer or other plan sponsor of a group health plan, including but not limited to, a board of trustees (or similar body), association or other group, with regard to its employment practices, including the provision of employee health benefits. (c) Any provision of this part held to be invalid or unenforceable by its terms, or as applied to any person or circumstance, shall be severable from this part and shall not affect the remainder thereof or the application of the provision to other persons not similarly situated or to other, dissimilar circumstances. § 92.3 Relationship to other laws. (a) Neither section 1557 nor this part shall be construed to apply a lesser standard for the protection of individuals from discrimination than the standards applied under title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, or the regulations issued pursuant to those laws. (b) Nothing in this part shall be construed to invalidate or limit the rights, remedies, procedures, or legal standards available under title VI of the Civil Rights Act of 1964, title VII of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, or the Age Discrimination Act of 1975. (c) Insofar as the application of any requirement under this part would violate applicable Federal protections for religious freedom and conscience, such application shall not be required. For example, 42 U.S.C. 18023 provides (among other things) that nothing in section 1557 shall be construed to have any effect on Federal laws regarding conscience protection; willingness or refusal to provide abortion; and discrimination on the basis of the willingness or refusal to provide, pay for, cover, or refer for abortion or to provide or participate in training to provide abortion. (d) Nothing in this part shall be construed to supersede State or local laws that provide additional protections against discrimination on any basis described in § 92.1. § 92.4 Definitions. As used in this part, the term— 1991 Standards 2010 Standards ACA ADA et seq. Age Age Act et seq. Applicant Auxiliary aids and services (1) Qualified interpreters on-site or through video remote interpreting (VRI) services, as defined in 28 CFR 35.104 and 36.104; note takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible information and communication technology (ICT); or other effective methods of making aurally delivered information available to persons who are deaf or hard of hearing; (2) Qualified readers; taped texts; audio recordings; Braille materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible information and communication technology; or other effective methods of making visually delivered materials available to persons who are blind or have low vision; (3) Acquisition or modification of equipment and devices; and (4) Other similar services and actions. Companion Covered entity (1) A recipient of Federal financial assistance; (2) The Department; and (3) An entity established under title I of the ACA. Department Director Disability Exchange Federal financial assistance, (1) Federal financial assistance means any grant, loan, credit, subsidy, contract (other than a procurement contract but including a contract of insurance), or any other arrangement by which the Federal Government, directly or indirectly, provides assistance or otherwise makes assistance available in the form of: (i) Funds; (ii) Services of Federal personnel; or (iii) Real or personal property or any interest in or use of such property, including: (A) Transfers or leases of such property for less than fair market value or for reduced consideration; and (B) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government. (2) Federal financial assistance the Department provides or otherwise makes available includes Federal financial assistance that the Department plays a role in providing or administering, including advance payments of the premium tax credit and cost-sharing reduction payments under title I of the ACA, as well as payments, subsidies, or other funds extended by the Department to any entity providing health insurance coverage for payment to or on behalf of a person obtaining health insurance coverage from that entity or extended by the Department directly to such person for payment to any entity providing health insurance coverage. Federally-facilitated Exchange Health program or activity (1) Any project, enterprise, venture, or undertaking to: (i) Provide or administer health-related services, health insurance coverage, or other health-related coverage; (ii) Provide assistance to persons in obtaining health-related services, health insurance coverage, or other health-related coverage; (iii) Provide clinical, pharmaceutical, or medical care; (iv) Engage in health or clinical research; or (v) Provide health education for health care professionals or others. (2) All of the operations of any entity principally engaged in the provision or administration of any health projects, enterprises, ventures, or undertakings described in paragraph (1) of this definition, including, but not limited to, a State or local health agency, hospital, health clinic, health insurance issuer, physician's practice, pharmacy, community-based health care provider, nursing facility, residential or community-based treatment facility, or other similar entity or combination thereof. A health program or activity also includes all of the operations of a State Medicaid program, Children's Health Insurance Program, and Basic Health Program. Individual with limited English proficiency e.g., e.g., Information and communication technology (ICT) Language assistance services (1) Oral language assistance, including interpretation in non-English languages provided in-person or remotely by a qualified interpreter for an individual with limited English proficiency, and the use of qualified bilingual or multilingual staff to communicate directly with individuals with limited English proficiency; (2) Written translation, performed by a qualified translator, of written content in paper or electronic form into or from languages other than English; and (3) Written notice of availability of language assistance services. Machine translation National origin OCR Patient care decision support tool Qualified bilingual/multilingual staff (1) Proficient in speaking and understanding both spoken English and at least one other spoken language, including any necessary specialized vocabulary, terminology and phraseology; and (2) Able to effectively, accurately, and impartially communicate directly with individuals with limited English proficiency in their primary languages. Qualified individual with a disability Qualified interpreter for an individual with a disability (1) Has demonstrated proficiency in communicating in, and understanding: (i) Both English and a non-English language (including American Sign Language, other sign languages); or (ii) Another communication modality (such as cued-language transliterators or oral transliteration); (2) Is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary or terms without changes, omissions, or additions and while preserving the tone, sentiment, and emotional level of the original statement; and (3) Adheres to generally accepted interpreter ethics principles including client confidentiality. (4) Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators. Qualified interpreter for an individual with limited English proficiency (1) Has demonstrated proficiency in speaking and understanding both spoken English and at least one other spoken language (qualified interpreters for relay interpretation must demonstrate proficiency in two non-English spoken languages); (2) Is able to interpret effectively, accurately, and impartially to and from such language(s) and English (or between two non-English languages for relay interpretation), using any necessary specialized vocabulary or terms without changes, omissions, or additions and while preserving the tone, sentiment, and emotional level of the original oral statement; and (3) Adheres to generally accepted interpreter ethics principles, including client confidentiality. Qualified reader Qualified translator (1) Has demonstrated proficiency in writing and understanding both written English and at least one other written non-English language; (2) Is able to translate effectively, accurately, and impartially to and from such language(s) and English, using any necessary specialized vocabulary or terms without changes, omissions, or additions and while preserving the tone, sentiment, and emotional level of the original written statement; and (3) Adheres to generally accepted translator ethics principles, including client confidentiality. Recipient Relay interpretation Section 504 Section 1557 State State Exchange Telehealth Title I entity Title VI et seq. Title VII et seq. Title IX et seq. UFAS et seq. § 92.5 Assurances required. (a) Assurances. (b) Duration of obligation. (c) Covenants. § 92.6 Remedial action and voluntary action. (a) Remedial action. (2) Where a recipient is found to have discriminated against an individual on the basis of race, color, national origin, sex, age, or disability, in violation of section 1557 or this part, and where another recipient exercises control over the recipient that has discriminated, the Director, where appropriate, may require either or both entities to take remedial action. (3) The Director may, where necessary to overcome the effects of discrimination in violation of section 1557 or this part, require a recipient, in its health programs and activities, or State Exchange to take remedial action with respect to: (i) Persons who are no longer participants in the recipient's or State Exchange's health program or activity but who were participants in the health program or activity when such discrimination occurred; or (ii) Persons who would have been participants in the health program or activity had the discrimination not occurred. (b) Voluntary action. § 92.7 Designation and responsibilities of a Section 1557 Coordinator. (a) Section 1557 Coordinator and designees. (b) Responsibilities of a Section 1557 Coordinator. (1) Receives, reviews, and processes grievances, filed under the grievance procedure as set forth in § 92.8(c); (2) Coordinates the covered entity's recordkeeping requirements as set forth in § 92.8(c); (3) Coordinates effective implementation of the covered entity's language access procedures as set forth in § 92.8(d); (4) Coordinates effective implementation of the covered entity's effective communication procedures as set forth in § 92.8(e); (5) Coordinates effective implementation of the covered entity's reasonable modification procedures as set forth in § 92.8(f); and (6) Coordinates training of relevant employees as set forth in § 92.9, including maintaining documentation required by such section. § 92.8 Policies and procedures. (a) General requirement. (b) Nondiscrimination policy. (2) OCR considers it a best practice toward achieving compliance for a covered entity to provide information that it has been granted a temporary exemption or granted an assurance of exemption under § 92.302(b) in the nondiscrimination policy required by paragraph (b)(1) of this section. (c) Grievance procedures. (2) A covered entity to which this paragraph applies must retain records related to grievances filed pursuant to the covered entity's grievance procedures required under paragraph (c)(1) of this section that allege discrimination on the basis of race, color, national origin, sex, age, or disability for no less than three (3) calendar years from the date the covered entity resolves the grievance. The records must include the grievance; the name and contact information of the complainant (if provided by complainant); the alleged discriminatory action and alleged basis (or bases) of discrimination; the date the grievance was filed; the date the grievance was resolved; grievance resolution; and any other pertinent information. (3) A covered entity to which this paragraph (c) applies must keep confidential the identity of an individual who has filed a grievance under this part except as required by law or to the extent necessary to carry out the purposes of this part, including the conduct of any investigation. (d) Language access procedures. (e) Effective communication procedures. (f) Reasonable modification procedures. (g) Combined policies and procedures. (h) Changes to policies and procedures. (2) A covered entity may change a policy or procedure required by paragraphs (b) through (g) of this section at any time, provided that such changes comply with section 1557 and this part. § 92.9 Training. (a) A covered entity must train relevant employees of its health programs and activities on the civil rights policies and procedures required by § 92.8, as necessary and appropriate for the employees to carry out their functions within the covered entity consistent with the requirements of this part. (b) A covered entity must provide training that meets the requirements of paragraph (a) of this section, as follows: (1) To each relevant employee of the health program or activity as soon as possible, but no later than 30 days following a covered entity's implementation of the policies and procedures required by § 92.8, and no later than 300 days following July 5, 2024; (2) Thereafter, to each new relevant employee of the health program or activity within a reasonable period of time after the employee joins the covered entity's workforce; and (3) To each relevant employee of the health program or activity whose functions are affected by a material change in the policies or procedures required by § 92.8 and any other civil rights policies or procedures the covered entity has implemented within a reasonable period of time after the material change has been made. (4) For purposes of this section, “relevant employees” includes permanent and temporary employees whose roles and responsibilities entail interacting with patients and members of the public; making decisions that directly or indirectly affect patients' health care, including the covered entity's executive leadership team and legal counsel; and performing tasks and making decisions that directly or indirectly affect patients' financial obligations, including billing and collections. (c) A covered entity must contemporaneously document its employees' completion of the training required by paragraphs (a) and (b) of this section in written or electronic form and retain said documentation for no less than three (3) calendar years. § 92.10 Notice of nondiscrimination. (a) A covered entity must provide a notice of nondiscrimination to participants, beneficiaries, enrollees, and applicants of its health programs and activities, and members of the public. (1) The notice required under this paragraph (a) must include the following information relating to the covered entity's health programs and activities: (i) The covered entity does not discriminate on the basis of race, color, national origin (including limited English proficiency and primary language), sex (consistent with the scope of sex discrimination described at § 92.101(a)(2)), age, or disability; (ii) The covered entity provides reasonable modifications for individuals with disabilities, and appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, such as braille or large print, free of charge and in a timely manner, when such modifications, aids, and services are necessary to ensure accessibility and an equal opportunity to participate to individuals with disabilities; (iii) The covered entity provides language assistance services, including electronic and written translated documents and oral interpretation, free of charge and in a timely manner, when such services are a reasonable step to provide meaningful access to an individual with limited English proficiency; (iv) How to obtain from the covered entity the reasonable modifications, appropriate auxiliary aids and services, and language assistance services in paragraphs (a)(1)(ii) and (iii) of this section; (v) The contact information for the covered entity's Section 1557 Coordinator designated pursuant to § 92.7 (if applicable); (vi) The availability of the covered entity's grievance procedure pursuant to § 92.8(c) and how to file a grievance (if applicable); (vii) Details on how to file a discrimination complaint with OCR in the Department; and (viii) How to access the covered entity's website, if it has one, that provides the information required under this paragraph (a)(1). (2) The notice required under this paragraph (a) must be provided in a covered entity's health program or activity, as follows: (i) On an annual basis to participants, beneficiaries, enrollees (including late and special enrollees), and applicants of its health program or activity; (ii) Upon request; (iii) At a conspicuous location on the covered entity's health program or activity website, if it has one; and (iv) In clear and prominent physical locations, in no smaller than 20-point sans serif font, where it is reasonable to expect individuals seeking service from the health program or activity to be able to read or hear the notice. (b) A covered entity may combine the content of the notice required by paragraph (a) of this section with the notices required by 45 CFR 80.6(d), 84.8, 86.9, and 91.32 if the combined notice clearly informs individuals of their civil rights under section 1557 and this part, so long as it includes each of the elements required by paragraph (a)(1) of this section. § 92.11 Notice of availability of language assistance services and auxiliary aids and services. (a) A covered entity must provide a notice of availability of language assistance services and auxiliary aids and services that, at minimum, states that the covered entity, in its health programs or activities, provides language assistance services and appropriate auxiliary aids and services free of charge, when necessary for compliance with section 1557 or this part, to participants, beneficiaries, enrollees, and applicants of its health program or activities, and members of the public. (b) The notice required under paragraph (a) of this section must be provided in English and at least the 15 languages most commonly spoken by individuals with limited English proficiency of the relevant State or States in which a covered entity operates and must be provided in alternate formats for individuals with disabilities who require auxiliary aids and services to ensure effective communication. (c) The notice required under paragraph (a) of this section must be provided in a covered entity's health program or activity, as follows: (1) On an annual basis to participants, beneficiaries, enrollees (including late and special enrollees), and applicants of its health program or activity; (2) Upon request; (3) At a conspicuous location on the covered entity's health program or activity website, if it has one; (4) In clear and prominent physical locations, in no smaller than 20-point sans serif font, where it is reasonable to expect individuals seeking service from the health program or activity to be able to read or hear the notice; and (5) In the following electronic and written communications when these forms are provided by a covered entity: (i) Notice of nondiscrimination required by § 92.10; (ii) Notice of privacy practices required by 45 CFR 164.520; (iii) Application and intake forms; (iv) Notices of denial or termination of eligibility, benefits or services, including Explanations of Benefits, and notices of appeal and grievance rights; (v) Communications related to an individual's rights, eligibility, benefits, or services that require or request a response from a participant, beneficiary, enrollee, or applicant; (vi) Communications related to a public health emergency; (vii) Consent forms and instructions related to medical procedures or operations, medical power of attorney, or living will (with an option of providing only one notice for all documents bundled together); (viii) Discharge papers; (ix) Communications related to the cost and payment of care with respect to an individual, including medical billing and collections materials, and good faith estimates required by section 2799B-6 of the Public Health Service Act; (x) Complaint forms; and (xi) Patient and member handbooks. (d) A covered entity shall be deemed in compliance with this section with respect to an individual if it exercises the option to: (1) On an annual basis, provide the individual with the option to opt out of receipt of the notice required by this section in their primary language and through any appropriate auxiliary aids and services, and: (i) Does not condition the receipt of any aid or benefit on the individual's decision to opt out; (ii) Informs the individual that they have a right to receive the notice upon request in their primary language and through the appropriate auxiliary aids and services; (iii) Informs the individual that opting out of receiving the notice is not a waiver of their right to receive language assistance services and any appropriate auxiliary aids and services as required by this part; (iv) Documents, on an annual basis, that the individual has opted out of receiving the notice required by this section for that year; and (v) Does not treat a non-response from an individual as a decision to opt out; or (2) Document the individual's primary language and any appropriate auxiliary aids and services and: (i) Provides all materials and communications in that individual's primary language and through any appropriate auxiliary aids and services; or (ii) Provides the notice required by paragraph (a) of this section in that individual's primary language and through any appropriate auxiliary aids and services in all communications that are identified in paragraph (c)(5) of this section. Subpart B—Nondiscrimination Provisions § 92.101 Discrimination prohibited. (a) General. (2) Discrimination on the basis of sex includes, but is not limited to, discrimination on the basis of: (i) Sex characteristics, including intersex traits; (ii) Pregnancy or related conditions; (iii) Sexual orientation; (iv) Gender identity; and (v) Sex stereotypes. (b) Specific prohibitions on discrimination. (i) A recipient and State Exchange must comply with the specific prohibitions on discrimination in the Department's implementing regulations for title VI, section 504, title IX, and the Age Act, found at 45 CFR parts 80, 84, 86 (subparts C and D), and 91 (subpart B), respectively. Where this paragraph (b) cross-references regulatory provisions that use the term “recipient,” the term “recipient or State Exchange” shall apply in its place. Where this paragraph (b) cross-references regulatory provisions that use the term “student,” “employee,” or “applicant,” these terms shall be replaced with “individual.” (ii) The Department, including Federally-facilitated Exchanges, must comply with specific prohibitions on discrimination in the Department's implementing regulations for title VI, section 504, title IX, and the Age Act, found at 45 CFR parts 80, 85, 86 (subparts C and D), and 91 (subpart B), respectively. Where this paragraph (b) cross-references regulatory provisions that use the term “a recipient,” the term “the Department or a Federally-facilitated Exchange” shall apply in its place. Where this paragraph (b) cross-references regulatory provisions that use the term “student,” “employee,” or “applicant,” these terms shall be replaced with “individual.” (2) The enumeration of specific prohibitions on discrimination in paragraph (b)(1) of this section does not limit the general applicability of the prohibition in paragraph (a) of this section. Subpart C—Specific Applications to Health Programs and Activities § 92.201 Meaningful access for individuals with limited English proficiency. (a) General requirement. (b) Language assistance services requirements. (c) Specific requirements for interpreter and translation services. (2) When translation services are required under this part, a covered entity must utilize the services of a qualified translator in its health programs and activities. (3) If a covered entity uses machine translation when the underlying text is critical to the rights, benefits, or meaningful access of an individual with limited English proficiency, when accuracy is essential, or when the source documents or materials contain complex, non-literal or technical language, the translation must be reviewed by a qualified human translator. (d) Evaluation of compliance. (1) Evaluate, and give substantial weight to, the nature and importance of the health program or activity and the particular communication at issue, to the individual with limited English proficiency; and (2) Take into account other relevant factors, including the effectiveness of the covered entity's written language access procedures for its health programs and activities, that the covered entity has implemented pursuant to § 92.8(d). (e) Restricted use of certain persons to interpret or facilitate communication. (1) Require an individual with limited English proficiency to provide their own interpreter, or to pay the cost of their own interpreter; (2) Rely on an adult, not qualified as an interpreter, to interpret or facilitate communication, except: (i) As a temporary measure, while finding a qualified interpreter in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for the individual with limited English proficiency immediately available and the qualified interpreter that arrives confirms or supplements the initial communications with an initial adult interpreter; or (ii) Where the individual with limited English proficiency specifically requests, in private with a qualified interpreter present and without an accompanying adult present, that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, the request and agreement by the accompanying adult is documented, and reliance on that adult for such assistance is appropriate under the circumstances; (3) Rely on a minor child to interpret or facilitate communication, except as a temporary measure while finding a qualified interpreter in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for the individual with limited English proficiency immediately available and the qualified interpreter that arrives confirms or supplements the initial communications with the minor child; or (4) Rely on staff other than qualified interpreters, qualified translators, or qualified bilingual/multilingual staff to communicate with individuals with limited English proficiency. (f) Video remote interpreting services. (1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) A sharply delineated image that is large enough to display the interpreter's face and the participating person's face regardless of the person's body position; (3) A clear, audible transmission of voices; and (4) Adequate training to users of the technology and other involved persons so that they may quickly and efficiently set up and operate the video remote interpreting. (g) Audio remote interpreting services. (1) Real-time audio over a dedicated high-speed, wide-bandwidth connection or wireless connection that delivers high-quality audio without lags or irregular pauses in communication; (2) A clear, audible transmission of voices; and (3) Adequate training to users of the technology and other involved persons so that they may quickly and efficiently set up and operate the remote interpreting services. (h) Acceptance of language assistance services is not required. § 92.202 Effective communication for individuals with disabilities. (a) A covered entity must take appropriate steps to ensure that communications with individuals with disabilities (including companions with disabilities), are as effective as communications with non-disabled individuals in its health programs and activities, in accordance with the standards found at 28 CFR 35.130 and 35.160 through 35.164. Where the regulatory provisions referenced in this section use the term “public entity,” the term “covered entity” shall apply in its place. (b) A covered entity must provide appropriate auxiliary aids and services where necessary to afford individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, the health program or activity in question. Such auxiliary aids and services must be provided free of charge, in accessible formats, in a timely manner, and in such a way to protect the privacy and the independence of the individual with a disability. § 92.203 Accessibility for buildings and facilities. (a) No qualified individual with a disability shall, because a covered entity's facilities are inaccessible to or unusable by individuals with disabilities, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any health program or activity to which this part applies. (b) Each facility or part of a facility in which health programs or activities are conducted that is constructed or altered by or on behalf of, or for the use of, a recipient or State Exchange must comply with the 2010 Standards if the construction or alteration was commenced on or after July 18, 2016, except that if a facility or part of a facility in which health programs or activities are conducted that is constructed or altered by or on behalf of, or for the use of, a recipient or State Exchange, was not covered by the 2010 Standards prior to July 18, 2016, such facility or part of a facility must comply with the 2010 Standards if the construction or alteration was commenced after January 18, 2018. If construction or alteration was begun on or after July 18, 2016, and on or before January 18, 2018, in conformance with UFAS, and the facility or part of the facility was not covered by the 2010 Standards prior to July 18, 2016, then it shall be deemed to comply with the requirements of this section and with 45 CFR 84.23(a) and (b). Departures from particular technical and scoping requirements by the use of other methods are permitted where substantially equivalent or greater access to and usability of the facility is provided. All newly constructed or altered buildings or facilities subject to this section must comply with the requirements for a “public building or facility” as defined in section 106.5 of the 2010 Standards. (c) Each facility or part of a facility in which health programs or activities under this part are conducted that is constructed or altered by or on behalf of, or for the use of, a recipient or State Exchange in conformance with the 1991 Standards at appendix D to 28 CFR part 36 or the 2010 Standards shall be deemed to comply with the requirements of this section and with 45 CFR 84.23(a) and (b) with respect to those facilities, if the construction or alteration was commenced before July 18, 2016. Each facility or part of a facility in which health programs or activities are conducted that is constructed or altered by or on behalf of, or for the use of, a recipient or State Exchange in conformance with UFAS shall be deemed to comply with the requirements of this section and with 45 CFR 84.23(a) and (b), if the construction or alteration was commenced before July 18, 2016, and such facility would not have been required to conform with a different accessibility standard under 28 CFR 35.151. § 92.204 Accessibility of information and communication technology for individuals with disabilities. (a) A covered entity must ensure that its health programs and activities provided through information and communication technology are accessible to individuals with disabilities, unless doing so would result in undue financial and administrative burdens or a fundamental alteration in the nature of the health programs or activities. If an action required to comply with this section would result in such an alteration or such burdens, a covered entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services of the health program or activity provided by the covered entity. (b) A recipient or State Exchange shall ensure that its health programs and activities provided through websites and mobile applications comply with the requirements of section 504 of the Rehabilitation Act, as interpreted consistent with title II of the ADA (42 U.S.C. 12131 through 12165). § 92.205 Requirement to make reasonable modifications. A covered entity must make reasonable modifications to policies, practices, or procedures in its health programs and activities when such modifications are necessary to avoid discrimination on the basis of disability, unless the covered entity can demonstrate that making the modifications would fundamentally alter the nature of the health program or activity. For the purposes of this section, the term “reasonable modifications” shall be interpreted in a manner consistent with the term as set forth in the ADA title II regulation at 28 CFR 35.130(b)(7). § 92.206 Equal program access on the basis of sex. (a) A covered entity must provide individuals equal access to its health programs and activities without discriminating on the basis of sex. (b) In providing access to health programs and activities, a covered entity must not: (1) Deny or limit health services, including those that have been typically or exclusively provided to, or associated with, individuals of one sex, to an individual based upon the individual's sex assigned at birth, gender identity, or gender otherwise recorded; (2) Deny or limit, on the basis of an individual's sex assigned at birth, gender identity, or gender otherwise recorded, a health care professional's ability to provide health services if such denial or limitation has the effect of excluding individuals from participation in, denying them the benefits of, or otherwise subjecting them to discrimination on the basis of sex under a covered health program or activity; (3) Adopt or apply any policy or practice of treating individuals differently or separating them on the basis of sex in a manner that subjects any individual to more than de minimis harm, including by adopting a policy or engaging in a practice that prevents an individual from participating in a health program or activity consistent with the individual's gender identity; or (4) Deny or limit health services sought for purpose of gender transition or other gender-affirming care that the covered entity would provide to an individual for other purposes if the denial or limitation is based on an individual's sex assigned at birth, gender identity, or gender otherwise recorded. (c) Nothing in this section requires the provision of any health service where the covered entity has a legitimate, nondiscriminatory reason for denying or limiting that service, including where the covered entity typically declines to provide the health service to any individual or where the covered entity reasonably determines that such health service is not clinically appropriate for a particular individual. A covered entity's determination must not be based on unlawful animus or bias, or constitute a pretext for discrimination. Nothing in this section is intended to preclude a covered entity from availing itself of protections described in §§ 92.3 and 92.302. (d) The enumeration of specific forms of discrimination in paragraph (b) of this section does not limit the general applicability of the prohibition in paragraph (a) of this section. § 92.207 Nondiscrimination in health insurance coverage and other health-related coverage. (a) A covered entity must not, in providing or administering health insurance coverage or other health-related coverage, discriminate on the basis of race, color, national origin, sex, age, disability, or any combination thereof. (b) A covered entity must not, in providing or administering health insurance coverage or other health-related coverage: (1) Deny, cancel, limit, or refuse to issue or renew health insurance coverage or other health-related coverage, or deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions on coverage, on the basis of race, color, national origin, sex, age, disability, or any combination thereof; (2) Have or implement marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, disability, or any combination thereof, in health insurance coverage or other health-related coverage; (3) Deny or limit coverage, deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions on coverage, to an individual based upon the individual's sex assigned at birth, gender identity, or gender otherwise recorded; (4) Have or implement a categorical coverage exclusion or limitation for all health services related to gender transition or other gender-affirming care; (5) Otherwise deny or limit coverage, deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions on coverage, for specific health services related to gender transition or other gender-affirming care if such denial, limitation, or restriction results in discrimination on the basis of sex; or (6) Have or implement benefit designs that do not provide or administer health insurance coverage or other health-related coverage in the most integrated setting appropriate to the needs of qualified individuals with disabilities, including practices that result in the serious risk of institutionalization or segregation. (c) Nothing in this section requires coverage of any health service where the covered entity has a legitimate, nondiscriminatory reason for denying or limiting coverage of the health service or determining that such health service fails to meet applicable coverage requirements, including reasonable medical management techniques such as medical necessity requirements. Such coverage denial or limitation must not be based on unlawful animus or bias, or constitute a pretext for discrimination. Nothing in this section is intended to preclude a covered entity from availing itself of protections described in §§ 92.3 and 92.302. (d) The enumeration of specific forms of discrimination in paragraph (b) of this section does not limit the general applicability of the prohibition in paragraph (a) of this section. § 92.208 Prohibition on sex discrimination related to marital, parental, or family status. In determining whether an individual satisfies any policy or criterion regarding access to its health programs or activities, a covered entity must not take an individual's sex, as defined in § 92.101(a)(2), into account in applying any rule concerning an individual's current, perceived, potential, or past marital, parental, or family status. § 92.209 Nondiscrimination on the basis of association. A covered entity must not exclude from participation in, deny the benefits of, or otherwise discriminate against an individual or entity in its health programs and activities on the basis of the respective race, color, national origin, sex, age, or disability of the individual and another person with whom the individual or entity has a relationship or association. § 92.210 Nondiscrimination in the use of patient care decision support tools. (a) General prohibition. (b) Identification of risk. (c) Mitigation of risk. § 92.211 Nondiscrimination in the delivery of health programs and activities through telehealth services. A covered entity must not, in delivery of its health programs and activities through telehealth services, discriminate on the basis of race, color, national origin, sex, age, or disability. Subpart D—Procedures § 92.301 Enforcement mechanisms. The enforcement mechanisms available for and provided under title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975 shall apply for purposes of section 1557 as implemented by this part. § 92.302 Notification of views regarding application of Federal religious freedom and conscience laws. (a) General application. (b) Assurance of religious freedom and conscience exemption. (1) The particular provision(s) of this part from which the recipient asserts they are exempt under Federal religious freedom or conscience protections; (2) The legal basis supporting the recipient's exemption should include the standards governing the applicable Federal religious freedom and conscience protections, such as the provisions in the ACA itself; the Church, Coats-Snowe, and Weldon Amendments; the generally applicable requirements of the Religious Freedom Restoration Act (RFRA); or any other applicable Federal laws; and (3) The factual basis supporting the recipient's exemption, including identification of the conflict between the recipient's religious or conscience beliefs and the requirements of this part, which may include the specific contexts, procedures, or health care services that the recipient asserts will violate their religious or conscience beliefs overall or based on an individual patient matter. (c) Temporary exemption. (1) If the notification is received before an investigation is initiated, within 30 days of receiving the notification, OCR must provide the recipient with email confirmation acknowledging receipt of the notification. OCR will then work expeditiously to reach a determination of recipient's notification request. (2) If the notification is received during the pendency of an investigation, the temporary exemption will exempt conduct as applied to the specific contexts, procedures, or health care services identified in the notification during the pendency of OCR's review and determination regarding the notification request. The notification shall further serve as a defense to the relevant investigation or enforcement activity regarding the recipient until the final determination of recipient's exemption assurance request or the conclusion of the investigation. (d) Effect of determination. (e) Appeal. (f) Final agency action. § 92.303 Procedures for health programs and activities conducted by recipients and State Exchanges. (a) The procedural provisions applicable to title VI apply with respect to administrative enforcement actions against health programs and activities of recipients and State Exchanges concerning discrimination on the basis of race, color, national origin, sex, age, disability, or any combination thereof, under section 1557 or this part. These procedures are found at 45 CFR 80.6 through 80.11 and 45 CFR part 81. (b) If OCR receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate Federal Government entity. (c) When a recipient or State Exchange fails to provide OCR with requested information in a timely, complete, and accurate manner, OCR may, after attempting to reach voluntary resolution, find noncompliance with section 1557 or this part and initiate appropriate enforcement procedures, found at 45 CFR 80.8, including beginning the process for fund suspension or termination and taking other action authorized by law. § 92.304 Procedures for health programs and activities administered by the Department. (a) The procedural provisions applicable to section 504 shall apply with respect to administrative enforcement actions against the Department, including Federally-facilitated Exchanges, concerning discrimination on the basis of race, color, national origin, sex, age, disability, or any combination thereof, under section 1557 or this part. These procedures are found at 45 CFR 85.61 and 85.62. Where this section cross-references regulatory provisions that use the term “handicap,” the term “race, color, national origin, sex, age, or disability, or any combination thereof,” shall apply in its place. (b) The Department must permit access by OCR to its books, records, accounts, other sources of information, and facilities as may be pertinent to ascertain compliance with section 1557 or this part. Where any information required of the Department is in the exclusive possession of any other agency, institution or person, and the other agency, institution or person fails or refuses to furnish this information, the Department shall so certify and shall set forth what efforts it has made to obtain the information. Asserted considerations of privacy or confidentiality may not operate to bar OCR from evaluating or seeking to enforce compliance with section 1557 or this part. Information of a confidential nature obtained in connection with compliance evaluation or enforcement shall not be disclosed except where necessary under the law. (c) The Department must not intimidate, threaten, coerce, retaliate, or otherwise discriminate against any individual or entity for the purpose of interfering with any right or privilege secured by section 1557 or this part, or because such individual or entity has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under section 1557 or this part. The identity of complainants must be kept confidential by OCR in accordance with applicable Federal law.