HHS has issued proposed regulations that, if finalized, would significantly revise existing regulations issued under Section 1557 of the Affordable Care Act (“ACA”). The proposed regulations would continue to prohibit discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities, while revising certain provisions of the current Section 1557 regulations that a federal court has determined are likely unlawful.
Background. Section 1557 directs HHS to apply existing civil rights laws and regulations to certain health programs or activities that receive federal financial assistance. (This includes ACA Exchanges.) The laws include Title IX of the Civil Rights Act prohibiting discrimination on the basis of sex in certain federally funded programs. In 2016, HHS issued regulations that redefined discrimination “on the basis of sex” to include termination of pregnancy and gender identity which it defined as one’s internal sense of being “male, female, neither, or a combination of male and female.”
In December 2016, a federal court preliminarily enjoined the ACA Section 1557 regulation’s termination of pregnancy and gender identity provisions, finding them contrary to the applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. A second federal court subsequently agreed.
Proposed Regulations. The new proposed regulations would revise the provisions to reflect the courts’ findings. However, under the proposed regulations, HHS would continue to enforce ACA Section 1557’s prohibitions of discrimination on the basis of race, color, national origin, disability, age, and sex in healthcare. The proposed regulations would also retain protections provided under the 2016 regulations that ensure physical access for persons with disabilities to healthcare facilities, and appropriate communication technology to assist persons who are visually or hearing-impaired.
The proposal retains protections for non-English speakers, including the right to meaningful language access to healthcare, qualification standards for translators and interpreters, and limitations on the use of minors and family members as translators in healthcare settings. Regulated entities would continue to be required to provide written assurance to HHS that they will comply with Section 1557’s civil rights provisions and its proposed regulations. However, the proposal would, in many instances, eliminate certain current notice requirements.
HHS estimates that its proposed Section 1557 regulations would eliminate $3.2 billion in unneeded paperwork burdens imposed under the 2016 regulations, claiming that the original regulations required regulated entities to send billions of “tagline” notices each year informing patients and customers of their ability to have “significant documents” translated into at least 15 different languages.
The proposed Section 1557 regulations are available at: https://www.hhs.gov/sites/default/files/1557-nprm-hhs.pdf