On May 24, 2019, the U.S. Department of Health and Human Service (HHS) issued its proposed rule to revise the regulation implementing and enforcing Section 1557 of the Affordable Care Act (ACA), the Act’s Nondiscrimination provision. The press release can be found on HHS’s website here, and HHS’s fact sheet summarizing the proposed changes can be found here.

The proposed revisions are extensive, but include the following notable changes:

• HHS proposes to revise the definition of “sex” discrimination to no longer include protections against discrimination on the basis of gender identity or termination of pregnancy.
• HHS proposes to eliminate the 2016 regulation’s requirements concerning non-discrimination notices and taglines, including the requirement that all “significant communications” include the required notices and taglines. HHS also proposes to eliminate the requirement that covered entities designate an employee responsible for compliance with Section 1557 and that covered entities create a grievance procedure to resolve complaints of discrimination. 
•  HHS also proposes to reverse its current interpretation of Section 1557’s enforcement structure. The current interpretation provides for a single enforcement structure for any discrimination claim under Section 1557—and a private cause of action for disparate impact discrimination (unintentional discrimination) under Title VI, which prohibits discrimination the basis of race, color, or national origin. The newly proposed interpretation would, by contrast, interpret Section 1557 as merely incorporating pre-existing civil rights statutes and regulations and not adding to them in any way. This interpretation would therefore not permit a private cause of action for disparate impact discrimination under Title VI.

The proposed rule retains, however, most all of the current regulation’s protections for individuals with disabilities and individuals with Limited English Proficiency.

The proposed regulation can be found online here and was published in the Federal Register (84 FR 27846) on June 14, 2019. Comments from the healthcare industry and the public must be submitted by August 13, 2019. In the proposed regulation, HHS specifically asked for comments concerning whether it has struck the appropriate balance between the rights of individuals under federal law and the burdens imposed on covered entities with respect to discrimination against individuals with LEP and disabilities. HHS estimates that its proposed revisions would eliminate $3.2 billion in regulatory burdens imposed by the current regulation’s notice and tagline requirements.