Proposed Rule Revises Nondiscrimination Regulations for Health Care

WASHINGTON, D.C. (June 18, 2019)—The Department of Health and Human Services (HHS) and Centers for Medicare & Medicaid Services (CMS) have issued a proposed rule significantly revising the nondiscrimination regulations that implemented Section 1557 of the Affordable Care Act (ACA). The revisions are intended to reduce burden, eliminate redundancy with several other nondiscriminatory regulations, and provide clarity in the application of nondiscrimination requirements. The same proposed rule was issued by HHS, Office of Civil Rights (OCR) on May 24, 2019.

Section 1557 builds on long-standing and familiar Federal civil rights laws: 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. Section 1557 of the ACA, requires that the existing civil rights laws and regulations apply to health care and the ACA Exchanges.

In 2016, a final rule was issued that implemented the provisions of Section 1557. Among other things included in the final rule, were specific requirements regarding language assistance services, multi-language ‘‘taglines,’’ and nondiscrimination notices. The final rule also had an expanded definition for “on the basis of sex” that included gender identity and sex stereotyping.

HHS proposes to eliminate in its entirety the definition section, which includes the definition for “on the basis of sex,” and the sections that require covered entities include translated taglines on notices of significant communications; notice requirements that require covered entities to post information about Section 1557 and nondiscrimination at its locations and on its website; and requirements to have a compliance coordinator and written grievance procedure to handle complaints about alleged violations.

Under the proposed rule, HHS would continue to vigorously enforce prohibitions of discrimination on the basis of race, color, national origin, disability, age, and sex in health care, as Section 1557 provides. The proposed rule would also retain protections under the 2016 regulation that ensure physical access for persons with disabilities to health care facilities, and appropriate communication technology to assist persons who are visually or hearing-impaired. HHS’s proposed rule would also retain protections for non-English speakers, including the right to meaningful language access to health care, qualification standards for translators and interpreters, and limitations on the use of minors and family members as translators in health care settings. Regulated entities would also continue to be required to provide written assurance that they will comply with Section 1557’s civil rights provisions and the proposed regulation.

CMS estimates the proposed revisions would eliminate $3.2 billion in unneeded paperwork burdens imposed by the 2016 final rule.

Comments on the proposed rule are due August 13, 2019.

Read the full rule here.

—Via NAHC