The Department of Health and Human Services (HHS) has proposed to reinstate and add nondiscrimination protections in Section 1557 of the Affordable Care Act (ACA).
Section 1557 of the ACA protects against discrimination based on race, color, national origin, sex, age, or disability of individuals in federally funded health programs. These requirements apply to all hospitals and other entities participating in federal health programs.
HHS in 2016 finalized a rule providing additional definitions and clarity related to Section 1557. In 2020, HHS overhauled parts of Section 1557, removing some nondiscrimination protections for transgender individuals and requirements for covered entities treating people with limited English proficiency.
The recent proposed rule:
- expands the definition of discrimination “on the basis of sex;”
- requires hospitals to implement and train staff on formal nondiscrimination policies and procedures;
- discusses notice requirements for nondiscrimination policies, as well as notice requirements for availability of language assistance services and auxiliary aids and services;
- prohibits discrimination in clinical algorithms; and
- explicitly includes telehealth services in nondiscrimination policies.
Definition of “On the Basis of Sex”
The proposed rule clarifies that discrimination on the basis of sex includes discrimination on the basis of:
- sex stereotypes;
- sex characteristics, including intersex traits;
- pregnancy or related conditions;
- sexual orientation; and
- gender identity.
Discriminating “on the basis of sex” also applies to an individual’s martial, parental, or family status.
Further, the proposed rule prohibits a covered entity from denying or limiting health services that are sought for the purpose of gender-affirming care and that the entity would provide to a person for other purposes if the denial or limitation is based on a patient’s sex assigned at birth, gender identity, or gender otherwise recorded.
Policies and Procedures
Under the proposed rule, a covered entity would be required to adopt and implement a nondiscrimination policy, along with procedures for filing grievances, ensuring language access, requesting auxiliary aids and services, and providing reasonable modifications for individuals with disabilities. HHS believes most covered entities need only to review and update their current policies and procedures.
The rule proposes to require covered entities to train relevant employees on Section 1557 policies and procedures and to document this training. HHS does not prescribe a specific training method and requires training only for relevant employees, including those who directly encounter or interact with patients.
Notice of Nondiscrimination
Notices of nondiscrimination describe protection against discrimination on the basis of race, color, national origin, sex, age, or disability. They also provide notice of reasonable modifications for individuals with disabilities; appropriate auxiliary aids and services, including qualified interpreters, for individuals with disabilities; and information in alternate formats.
Further, the notice must include information about available language assistance services, how to obtain these services, the grievance procedure, and how to file a complaint with the HHS Office of Civil Rights. Covered entities must provide these notices annually and upon request, in addition to posting them on the website and in prominent locations. This information can be combined with other, similar required notices.
Notice of Availability of Language Assistance Services and Auxiliary Aids and Services
The proposed rule builds on the previous ‘tagline’ requirement in the 2016 rule by requiring covered entities to notify the public of available auxiliary aids and services, such as alternative formats and sign language interpreters, in addition to language assistance services. Services must be accurate and timely, available at no cost to the patient, and protect the privacy and independent decision-making ability of the individual.
The rule also proposes to enable covered entities to allow individuals to opt out of receiving this notice or provide communications to individuals in their preferred language or through auxiliary aids and services.
Given recent research demonstrating bias in clinical algorithms, HHS proposes to prohibit discrimination through the use of clinical algorithms in decision-making. HHS states the intent is not to prohibit or hinder algorithm use, but to make clear that discrimination that occurs through their use is prohibited.
The proposed rule prohibits discrimination in the delivery of health programs and activities through telehealth services. The rule requires covered entities to ensure the accessibility of telehealth platforms and provide effective communication for individuals with disabilities through appropriate auxiliary aids and services and language assistance services.
Comments to CMS on the proposed rule are due Oct. 3.
Contact Senior Director of Policy Erin O’Malley at firstname.lastname@example.org or 202.585.0127 with questions.