New Director at HHS OCR Sets the Stage for Enforcement of Section 1557

Arnall Golden Gregory LLP

The Department of Health and Human Services Office of Civil Rights (HHS OCR), the office tasked with enforcing Section 1557 of the ACA, has a new Director and Deputy Director for Civil Rights. The new Director, Roger Severino, has most notably been critical of the Obama Administration’s regulation under Section 1557 in the past. In particular, Severino expressly disapproved of the regulation’s interpretation of “sex” as prohibiting gender identity discrimination. But at the same time, Severino takes the helm of HHS OCR with seven years of experience in the DOJ Civil Rights Division where he enforced nondiscrimination law. Sunu Chandy, the new Deputy Director for Civil Rights, also has a background in enforcing nondiscrimination law at the EEOC. Chandy also previously served as the General Counsel for the Office of Human Rights located in Washington, D.C.

With these positions filled, HHS now has until May 4th to take a position in the litigation brought by the State of Texas which resulted in a nationwide injunction against HHS’s interpretation that Section 1557 prohibits gender identity discrimination in healthcare. HHS’s litigation position should provide focus to the enforcement priorities of HHS OCR’s new leadership.

At the same time, recent settlement agreements and guidance posted on HHS OCR’s website provide further insight into Section 1557’s requirements and prohibitions. For example, OCR recently settled two investigations with healthcare providers: one involving language assistance services for patients with limited English proficiency, and the other involving auxiliary aids and services for deaf or hard of hearing patients. OCR also recently posted additional guidance on how to ensure that electronic health programs are accessible to individuals with disabilities, which can be found here.

And finally, OCR has also recently updated and expanded its FAQ’s related to Section 1557. Of note, in these expanded FAQ’s, OCR explains that business cards, appointment cards, envelopes, banners, billboards, and radio and TV ads are not “significant” documents or communications under the regulation—but that a provider’s Notice of Privacy Practices is. Covered healthcare providers should therefore ensure that their Notice of Privacy Practices includes the Nondiscrimination notice and taglines required under Section 1557. OCR also states that “Covered entities are in the best position to determine, within reason, which of their communications and publications are significant in the context of their own health programs and activities.” This indicates that HHS OCR will apply some deference to a covered entity’s good faith determinations regarding which of its documents and communications are “significant.”

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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