OCR Announces New Rule on Section 1557, the Affordable Care Act’s Nondiscrimination Provisions
On June 12, 2020, the Office for Civil Rights (OCR) of the U.S. Department of Health and Human Services (HHS) announced a new Final Rule implementing Section 1557, the nondiscrimination provision of the Affordable Care Act (ACA). The “Health and Health Education Programs or Activities, Delegation of Authorities” (the “2020 Final Rule”), which will be published in the Federal Register in the coming days, eliminates or revises several of the previous compliance requirements under Section 1557. Below we provide an overview of Section 1557 and the relevant changes for federally qualified health centers, behavioral health organizations, Ryan White grantees, and other healthcare providers covered by Section 1557.
Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs or activities that received federal financial assistance. It is built upon four long-standing 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 has been in effect since the passage of the ACA in 2010.
In 2016, OCR issued the “Nondiscrimination in Health Programs and Activities Final Rule” (“2016 Final Rule”) which implemented Section 1557. The key compliance requirements under the 2016 Final Rule included:
- Ensuring access for individuals with Limited English Proficiency (LEP): Under the 2016 Final Rule, covered entities were required take reasonable steps to provide meaningful access for individuals with LEP who are eligible to be served or likely to encounter their programs and activities through the use of qualified interpreters and translators. Covered entities were also required to post a notice informing individuals with LEP of their right to communication assistance and taglines (short statements written in non-English languages that indicate the availability of language assistance services free of charge) indicating the availability of language assistance in the top 15 languages spoken by individuals with LEP in the state. Covered entities were encouraged to develop and implement a language access plan as OCR would consider such a plan in evaluating whether a covered entity had met its LEP obligations under Section 1557.
- Ensuring access for individuals with disabilities: Under the 2016 Final Rule, covered entities were required to take appropriate steps to ensure that communication with individuals with disabilities was as effective as communication with others in health programs and activities, including by providing auxiliary aids and services. The 2016 Final Rule also required covered entities to make all programs and activities provided through electronic and information technology accessible for 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.
- Grievance process: Covered entities with 15 or more employees were required to designate an employee to coordinate compliance efforts related to Section 1557 and adopt grievance procedures.
- Notice requirements: As mentioned above, covered entities were required to post a nondiscrimination notice meeting the requirements under the 2016 Final Rule and taglines: (1) in significant publications and communications targeted to patients and members of the public, (2) in each physical location where the entity interacted with the public, and (3) on the covered entity’s website.
Since it was issued, the 2016 Final Rule faced legal challenges in Federal district courts, including in Texas and North Dakota. In December 2016, the U.S. District Court for the Northern District of Texas prohibited OCR from enforcing parts of the 2016 Final Rule that prohibited discrimination on the basis of gender identity or termination of pregnancy, both of which OCR had interpreted as being included as discrimination “on the basis of sex.”
2020 Final Rule
Changes under the 2020 Final Rule include:
- Eliminating the 2016 Final Rule’s definition of “on the basis of sex” which included gender identity and termination of pregnancy and which had prohibited discrimination based on gender identity and termination of pregnancy. In the 2020 Final Rule, OCR stated that it will return to the “plain meaning of ‘sex’ as biologically binary.”
- Eliminating the incentive for covered entities to develop language access plans and instead incorporating the four-factor test from the “HHS Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons” (last updated in 2003).
- Eliminating the visual standards for video remote interpreting services for LEP individuals.
- Eliminating the requirement to designate an employee to coordinate Section 1557 compliance and eliminating the requirement to have grievance procedures. OCR believes that to the degree the four civil rights statutes underlying Section 1557 have requirements related to internal compliance oversight, those regulations will provide sufficient enforcement of Section 1557.
- Eliminating the notice requirements. OCR estimates that eliminating the requirements to distribute non-discrimination notices and taglines will save more than $2 billion over the next five years.
While the 2020 Final Rule eliminates certain requirements related to Section 1557, it reaffirms other requirements, such as ensuring interpreters and translators are qualified and ensuring access for individuals with disabilities. As such, covered entities should:
- Ensure interpreter and translator services for individuals with LEP meet the qualification requirements
- Ensure communication services available for individuals with disabilities provide effective communication
- Ensure program activities provided through electronic and information technology (such as online appointment and electronic billing systems) are accessible for individuals with disabilities
Covered entities should also consider the effect of the 2020 Final Rule on LGBTQ patients and their families. While covered entities may decide to continue to provide nondiscrimination protections for LGBTQ patients, others may not. Covered entities may see increased numbers of patients and increased need for behavioral health services. Covered entities may also need to evaluate current and additional community partners and referral options for LGBTQ patients.
More information on the 2020 Final Rule is available on OCR’s website.
NEW WEBINAR: On Wednesday, July 1, 2020, at 3 PM ET FTLF will host a webinar on the 2020 Final Rule. Learn more or register here.
Ms. Pledgie is a member of the New York and Massachusetts Bars and is not licensed in Washington, DC. Her practice is limited to federal health care matters.