On September 8, 2015, the U.S. Department of Health and Human Services (“HHS”) proposed new regulations implementing Section 1557 of the Patient Protection and Affordable Care Act (“ACA”).[1] Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability in certain health programs and activities.[2] Although most health care providers already comply with various anti-discrimination mandates, Section 1557 is “the first federal civil rights law to prohibit discrimination on the basis of sex in health care.”[3] Furthermore, the new rule would strengthen certain nondiscrimination standards, particularly in regard to individuals with limited English proficiency and those who identify as being transgender.[4] In addition, the proposed rule includes new requirements for health care entities to provide public notice of their nondiscrimination policies.

Scope

The proposed rule would apply to the following broadly-defined categories of “covered entities”:

• Every health program or activity, any part of which is receiving federal financial assistance administered by HHS;
• Every health program or activity administered by HHS[5]; and
• Every health program or activity administered by an entity established under Title I of the ACA (e.g., a health insurance exchange or marketplace).

The rule explicitly names hospitals, health clinics, health insurers, physician practices, and nursing facilities, among others, as covered entities. For an entity principally engaged in health care activities, the entire entity would be subject to the nondiscrimination requirements, not just the components engaged directly in patient care. Notably, consistent with Office of Civil Rights (“OCR”) enforcement policies, the definition of federal financial assistance does not include Medicare Part B; however, Medicaid payments and meaningful use incentives for adoption of electronic health record technology do constitute federal financial assistance for purposes of this rule.[6]

Section 1557 explicitly applies particular civil rights statutes to health care activities, namely:

• Title VI of the Civil Rights Act of 1964 (race, color and national origin);
• Title IX of the Education Amendments of 1972 (sex);
• the Age Discrimination Act of 1975 (age); and
• Section 504 of the Rehabilitation Act of 1973 (disability).

HHS intends to incorporate existing interpretations of these laws to covered entities, as well as the laws’ enforcement mechanisms which include a private right of action and damages.[7] The new rule would not supersede state laws that may have stricter anti-discrimination provisions.

Discrimination on the Basis of Sex

HHS acknowledges that the statute most likely to be new to a covered entity is the sex discrimination law, which has historically governed educational rather than health care programs. Therefore, HHS has invited comments on how this antidiscrimination provision in particular should be implemented in the health care context.

HHS proposes to interpret this prohibition broadly to also prevent discrimination based on pregnancy and on gender identity, including specific protection of transgender individuals. For example, a health insurer’s categorical exclusion from coverage of gender transition services would be unlawful on its face, according to HHS. Furthermore, a covered entity could not deny services based on identified gender; e.g., it could not deny medically necessary treatment for ovarian cancer to a person who identifies as a transgender male.

Certain sex-based distinctions with a nondiscriminatory justification will continue to be acceptable. For example, a facility may continue to have separate bathrooms, and a physician practice may continue to focus solely on gynecological services. On the other hand, a hospital with a domestic violence protocol that only applies to female victims will likely have to be revised.[8]

Discrimination on the Basis of National Origin

Under the proposed rule, covered entities would also need to take reasonable steps to provide “meaningful access” for individuals with limited English proficiency. A covered entity’s reasonable efforts would be evaluated on a case-by-case basis, but at a minimum language services must be free, accurate, timely and protective of the privacy and independence of the individual. Furthermore, a covered entity could not:

• Require the person to provide his/her own interpreter;
• Rely on an adult accompanying the individual, except in emergency situations or if (i) the individual requests that the companion assist, (ii) the companion agrees, and (iii) the arrangement is reasonable under the circumstances; or
• Use a child to interpret, except in an emergency where there is no other option.

In strictly defining a “qualified interpreter,” HHS states, for example, that “a bilingual nurse… may not be a ‘qualified interpreter’ if serving as an interpreter would pose a conflict of interest with the nurse’s treatment of the patient.”[9]

Employee Benefits

The proposed rule does not purport to make any changes to antidiscrimination mandates in the employment context. However, the rule would govern employee health benefit programs (e.g., health insurance, wellness services and employee clinics) offered by covered entities that:

• Are principally engaged in providing or administering health services or health insurance;
• Receive federal financial assistance earmarked to fund the entity’s employee health benefit program; or
• Are not principally engaged in providing or administering health services or health insurance, but operate a health program or activity (other than an employee health benefit plan) that receives federal financial assistance, but only in regard to the employees of that program or activity.

“Thus, if a hospital provides health benefits to its employees, it will be covered by Section 1557 not only for the services it offers to its patients or other beneficiaries but also for the health benefits it provides to its employees.”[10]

Other Requirements

Other key provisions for health care providers under the proposed rule are as follows:

• A covered entity with more than 15 employees would have to (1) designate an employee to coordinate its nondiscrimination efforts; and (2) adopt a grievance procedure with due process standards to address alleged violations. Many health care providers already have such structures in place, but those procedures would need to extend to all prohibited types of discrimination under the rule.
• A covered entity would have to comply with certain public notice requirements.
  • Nondiscrimination notices must be presented in a covered entity’s major publications and communications, in conspicuous physical locations, and on the home page of its website. In regard to hard copy materials, covered entities are allowed to use up materials they have already printed before implementing this requirement.
  • The notice must state:
    • That the covered entity does not discriminate based on the protected classifications;
    • That auxiliary aids and services are available to people with disabilities;
    • That language assistance services are available to people with limited English proficiency;
    • How an individual can obtain such aids and services;
    • How and to whom an individual can file a grievance within the covered entity;
    • How to file a discrimination complaint with OCR.
  • Likewise, the covered entity must also post “taglines” in the top fifteen languages spoken by individuals with limited English proficiency nationally. “Taglines” are short statements in non-English languages that indicate the availability of language assistance services at no cost. 
  • HHS plans to publish a sample notice and sample taglines and will translate these documents into the top fifteen languages spoken by individuals with limited English proficiency nationally. The proposed notice appears in Exhibit A of the rule.
• Covered entities would need to make electronic and information technology communications accessible to individuals with disabilities, unless doing so would result in an undue financial or administrative burden or a fundamental alteration in the nature of the health program or activity.
• Consistent with other civil rights mandates, this rule would also prohibit discrimination on the basis of association, meaning that covered entity could not discriminate against an individual based on the protected status of his/her family members. For example, “a physician could not deny a medical appointment to a patient who is an individual without a disability on the basis that the patient will be accompanied by a family member who is deaf and will require a sign language interpreter.”[11]
• A covered entity would likely need to provide employee training regarding the new requirements, which HHS assumes would include at least “a one-time awareness or familiarization training” lasting one hour.[12]
• Covered entities applying to receive federal funds would have to submit an assurance of compliance with Section 1557.

Next Steps

Comments to the proposed rule are due November 6, 2015. Information about the proposed rule is available in languages other than English on the OCR website, here. Although the rule is still in proposed form, HHS emphasized that many of these nondiscrimination requirements already apply to health care providers and that the rule is based in part on OCR’s enforcement experience to date.[13] Therefore, health care providers should review their compliance policies in light of these mandates as interpreted by HHS.

Notes:

[1] Pub. Law 111-148 (Mar. 23, 2010).

[2] 80 Fed. Reg. 54172 (Sept. 8, 2015).  The new rules would be codified at 45 C.F.R. Part 92.

[3] HHS, Fact Sheet: Nondiscrimination in Health Programs and Activities Proposed Rule, Sept. 8, 2015.

[4] It is noteworthy that this proposed rule derives from an HHS “Request for Information,” 78 Fed. Reg. 46558 (Aug. 1, 2013), which yielded 402 comments, 239 of which were personal testimonies from transgender individuals. 80 Fed. Reg. at 54172.

[5] Although Section 1557 applies to health care programs and activities receiving financial assistance from any federal agency, this proposed rule only applies to funding through HHS.

[6] 80 Fed. Reg. at 54195, 54204 n. 132.

[7] Id. at 54192.

[8] Id. at 54204.

[9] Id. at 54177.

[10] Id. at 54190.

[11] Id. at 54191.

[12] Id. at 54196, 54200.

[13] Id. at 54182.