HHS Finalizes Civil Rights and Anti-Discrimination Rule

The U.S. Department of Health and Human Services (HHS) has finalized a new rule under Section 1557 of the Affordable Care Act in an effort to enforce civil rights laws and protect against discrimination in healthcare. The rule, entitled “Nondiscrimination in Health and Health Education Programs or Activities: Delegation of Authority,” attempts to restore civil rights protections established under Section 1557 and resolve certain issues with prior HHS rulemaking that were highly scrutinized.

Section 1557 prohibits covered healthcare entities from discriminating on the basis of race, color, national origin, disability, age or sex. In 2016, the previous HHS administration issued a rule that redefined discrimination on the basis of sex to include termination of pregnancy and gender identity. The rule was challenged in federal courts, which concluded that HHS exceeded the scope of authority delegated to it by Congress under Section 1557 and that the proposed definition of sex discrimination was overly broad and contrary to applicable civil rights laws. Based on the court rulings, the new rule issued by HHS returns to the plain meaning of the word “sex” and interprets sex discrimination as discrimination on the basis that someone is male or female, as determined by biology. It should be noted that neither the 2016 rule nor the new rule recognizes sexual orientation as a protected category under Section 1557.

The new rule also maintains certain anti-discrimination protections that were first established in the 2016 rule. These include the requirement that healthcare facilities have appropriate physical access for individuals with disabilities, communication technology for individuals who are visually or hearing impaired, and translation and interpretation services for non-English speakers.

One requirement from the 2016 rule that was eliminated in the new rule is the requirement that healthcare facilities provide patients with non-discrimination notices and taglines in 15 or more languages. The notice and taglines had to be included in all “significant communications” to patients. It was concluded that this notice and tagline requirement was excessive and did not meaningfully accomplish its intended purpose, which was to promote access to care for non-English speakers, and that the costs of compliance were being passed down to patients. HHS estimates that eliminating the requirement will save Americans approximately $2.9 billion over the next 5 years.

Healthcare entities covered under Section 1557 must continue to provide written assurances to HHS that they are complying with the provisions of the final rule and Section 1557, and HHS will continue to enforce any non-compliance.