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Proposed Rule to Revise ACA Section 1557 Enforces Civil Rights in Healthcare and Eliminates Billions in Unnecessary Costs

Section 1557 of the Affordable Care Act (ACA) is the nondiscrimination provision that prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in any health program that receives federal funding. On May 24, 2019, the Department of Health and Human Services (HHS) proposed a new rule that would maintain vigorous civil rights enforcement and revise certain provisions that a federal court has said are likely unlawful.

Existing civil rights laws and regulations were originally applied to Section 1557 of the ACA. These include:

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

HHS issued a new rule in 2016 that, among other things, redefined discrimination “on the basis of sex”. However, on December 31, 2016, in response to a lawsuit brought by several states and healthcare entities, a federal court preliminarily enjoined the rule’s new gender identity definition, calling the rule likely unlawful. A second federal court agreed.

About the proposed rule, the Office for Civil Rights Director Roger Severino said, “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives. The proposed rule would accomplish both goals.”

Physical access for persons with disabilities and appropriate communication technology to assist persons who are visually or hearing-impaired are among the protections that would remain under the proposed rule. Protections for non-English speakers include 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.

In addition to the regulatory revisions and civil rights enforcements of Section 1557, the proposed rule would also eliminate approximately $3.6 billion in unnecessary costs over the coming five years. The 2016 rule imposed $3.2 billion in paperwork burdens that have since been deemed unnecessary. These burdens included the requirement to mail billions of “tagline” notices every year, informing patients of their right to translation of “significant documents” into at least 15 different languages. In practice, our experience has shown that these provisions have been extremely burdensome and confusing for providers.

The proposed rule would also eliminate duplicate language-access requirements, creating additional savings of approximately $400 million over five years.

“The American people are tired of unnecessary regulations getting in the way of access to affordable healthcare, and today’s proposal would remove $3.6 billion in regulatory burdens that are ultimately being passed down to patients,” said Severino.

HHS has proposed making these changes effective 60 days after publication of the final rule.

For more information regarding Section 1557 of the ACA, please contact Clinton Mikel, Esq. at (248) 996-8510.

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