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OCR Proposes Changes to the ACA’s Nondiscrimination Regulations for Covered Entities Under Section 1557

on Wednesday, 5 June 2019 in Health Law Advisory: Zachary J. Buxton, Editor

On the Friday before a long Memorial Day weekend, the Office for Civil Rights (“OCR”) in the U.S. Department of Health and Human Services released proposed changes to its regulations implementing the Patient Protection and Affordable Care Act’s nondiscrimination regulations. The proposed changes are largely consistent with the Trump administration’s agenda to reduce the regulatory burden and enforce regulations consistent with their authorizing statutes.

Under the nondiscrimination section of the ACA—commonly referred to as Section 1557—an individual could not be excluded from, denied the benefits of, or subjected to discrimination under any health program or activity, any part of which receives Federal financial assistance such as Medicare Part A or Medicaid. Section 1557 prohibits discrimination in access to Federal health care programs on the bases enumerated in several longstanding civil rights legislation, including Title VI (race, color, or national origin), Title IX (sex), the Age Discrimination Act (age), and Section 504 of the Rehabilitation Act (disability).

The Section 1557 regulations—codified at 45 CFR Part 92 and originally published in May 2016—require covered entities to post translated taglines and notices of nondiscrimination in significant publications and communications, on websites, and in public locations throughout their facilities. Covered entities were also required to implement new procedures in order to achieve meaningful access to health care services for individuals with limited English proficiency and individuals with disabilities. A number of covered entities entered into agreements with language assistance services and updated policies on access to auxiliary aids to help facilitate access to health care services for these populations.

The new proposed regulations, released on May 24, 2019, alter some of these responsibilities but retain others. Covered entities must still submit an assurance of compliance with the Section 1557 regulations, provide language assistance services to individuals with limited English proficiency, provide access to auxiliary aids for individuals with disabilities, comply with the 2010 ADA Standards for Accessible Design for any new construction or alteration, and provide accessible information and communication technology for individuals with disabilities.

The regulations propose removing a number of requirements OCR deemed to be a regulatory burden, including the requirements to: publish a notice of nondiscrimination and the fifteen translated taglines, publish short-form notices of nondiscrimination, appoint an individual responsible for investigating Section 1557 complaints, implement language access plans for LEP individuals, and offer remote video interpreting services for LEP individuals (although covered entities may still offer remote video interpreting services for individuals with disabilities).

Once the proposed Section 1557 regulations are published in the Federal Register, OCR stated that it will suspend all sub-regulatory guidance including any FAQs, letters, and preamble to the final Section 1557 regulations published in May 2016 as far as they are inconsistent with the preamble to the new proposed regulations or any of the underlying statutes. At this time, however, the Obama administration’s Section 1557 regulations—including the requirement to post translated taglines and notices of nondiscrimination—are still in effect until OCR publishes the final regulations in the Federal Register

Zachary J. Buxton

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