United States: Five Key Takeaways From OCR's Proposed Rule To Scale Back The Non-Discrimination Requirements Applicable To Health Care Entities

The Department of Health & Human Services (HHS) Office for Civil Rights (OCR) recently issued a proposed rule (Proposed Rule) that would significantly scale back the non-discrimination regulations applicable to health care entities under the authority of Section 1557 of the Affordable Care Act (ACA). This Proposed Rule, issued on May 24, 2019 and scheduled to be published in the Federal Register June 14, 2019, would limit to whom and how Section 1557's non-discrimination provisions apply, how they will be enforced, and what activities will be required to demonstrate compliance. Entities covered by Section 1557 will need to know what the Proposed Rule would change, what would remain the same, and what OCR may emphasize in the future as it takes a new position on nondiscrimination enforcement. Here are five key takeaways.

1. The Proposed Rule would eliminate the definitions section of the regulations, potentially making sweeping changes to whom and how the regulations apply

The Proposed Rule would eliminate the definitions section of the regulations. This includes the current regulatory definition of "on the basis of sex," which is defined as "discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity."¹ That definition has been met with significant challenge, because the definition of "on the basis of sex" under the ACA refers to Title IX of the Education Amendments of 1972, which does not include gender or pregnancy.

In August 2016, a number of health care organizations, along with five states, challenged the definition of "on the basis of sex" in Franciscan Alliance v. Burwell. The plaintiffs argued that, in adding gender and pregnancy, OCR had exceeded its authority by expanding the definition of "sex" beyond Congress's original intent in Title IX. The judge enjoined OCR from enforcing this interpretation. So, while the holding did not otherwise excuse entities from complying with Section 1557 because the current rule provides citizens who allege discrimination prohibited under Section 1557 a private right of action, OCR may no longer enforce its more expansive definition of "on the basis of sex." In the Proposed Rule, OCR intends to rely on the interpretation of "sex" under Title IX. By doing so, the regulations issued under the authority of Section 1557 would only apply to biological, binary sex.

The removal of the definitions section could also alter the scope of the rule. Under the current regulations, "covered entities" – those that must comply with the non-discrimination provisions – include all health programs and activities that receive federal financial assistance through HHS; health programs and activities administered by HHS; and health programs and activities administered by entities established under Title I of the ACA². This current regulatory definition construes "health program or activity" broadly by including not only health services, but also health-related insurance coverage and other health-related assistance in obtaining health services.³

OCR now proposes that Section 1557 apply only to those entities "principally engaged" in the business of providing health care. A "covered entity" would include any health care entity receiving federal financial assistance through HHS, and any program or activity administered by HHS under Title I or by any entity established under Title I. Notably, the Proposed Rule would explicitly remove health insurers, on the basis that insurers are distinct from "health care." The agency otherwise calls for comments as to the inclusion or exclusion of employee health benefit programs, while also hinting at their possible removal in the final rule.

2. The Proposed Rule would eliminate certain costly administrative requirements, such as taglines

Under the current regulations, covered entities must include "taglines" in significant communications to denote the availability of language assistance services for Limited English Proficiency (LEP) individuals. These taglines must be in the top 15 languages of the entity's state. The Proposed Rule would eliminate these tagline requirements entirely, based on the notion that the cost of producing such taglines is too high. OCR projects that revoking this requirement would play a large part in saving taxpayers $3.6 billion over the first five years after the rule's finalization.

3. The Proposed Rule would eliminate the individualized focus of the Section 1557 non-discrimination requirements, instead assessing whether an entity meaningfully complies based, in part, on the size of its LEP population

The Proposed Rule would shift OCR's case-specific approach to evaluating alleged discrimination against LEP persons, instead focusing on the size of an entity's LEP population, and the accommodations made to those individuals on-balance. Previously, OCR took a more individualized view of compliance. For example, the current two-factor test for assessing whether an entity grants "meaningful access" to LEP individuals considers (1) the nature and importance of the health program or activity, and (2) the particular communication with the LEP individual.⁴ OCR also encourages entities to consider the prevalence of the language of the individual, the frequency with which a covered entity encounters the language, the individual's preferred language, the cost of language access services, and all resources available to the covered entity and its capacity to leverage resources to obtain language access services.

The Proposed Rule moves away from this individualized focus, measuring compliance against the entity's efforts towards its LEP population en masse. The Proposed Rule provides for a four-factor balancing test to assess whether an entity has meaningfully complied with its obligations, based on: (i) the number or proportion of limited English proficient individuals eligible to be served or likely to be encountered in the eligible service population; (ii) the frequency with which LEP individuals come in contact with the entity's health program, activity, or service; (iii) the nature and importance of the entity's health program, activity, or service; and (iv) the resources available to the entity and costs. This flexible standard, which weighs how many LEP individuals the entity sees against the cost of services, changes the view of compliance from an individually-based to a broader community-based inquiry. As currently proposed, query whether a lack of specific language access services may be justified, if an entity rarely sees certain LEP individuals, and those services would require significant resources or cost.

4. The Proposed Rule would retain many of its access and communication provisions for LEP and disabled individuals, and might maintain the requirement for entities to issue assurances of compliance

OCR details in its Proposed Rule a number of requirements that it plans to retain, including provisions on voluntary acceptance of language access services, effective communication for individuals with disabilities, accessibility of buildings and facilities, accessibility of information and communications technology, and the requirement to make reasonable modifications.

The Proposed Rule also preserves, either explicitly (through reference to other law) or impliedly, most of what OCR calls the "disability-rights related definitions." It notes that some terms are so clear they do not require formal definitions. These terms include "age," "individual with limited English proficiency," and "individual with a disability." As another example, the Proposed Rule retains most of the regulation's current language as to qualified translators and interpreters, but disposes of the designation of "qualified," which OCR views as redundant.

OCR additionally contemplates continuing to require covered entities to submit assurances of compliance with Section 1557. Applicants for HHS's federal financial assistance for health programs or activities, health insurance issuers seeking certification in a state exchange, and states seeking approval to operate in a state exchange would then all continue to submit assurance that the health program or activity will comply with the standards of Section 1557. Still, OCR calls for comment as to whether the rule necessitates these assurances. Further, the lack of clarity as to the definition of "health program or activity" under the Proposed Rule may give rise to greater questions about to whom this assurances of compliance requirement applies.

5. Finally, the Proposed Rule would eliminate the private right of action under Section 1557

Under the Proposed Rule, OCR would continue "faithfully and vigorously" enforcing Section 1557, but its methods of enforcement would be substantially different. The Proposed Rule would delegate to OCR the authority to handle complaints and otherwise take enforcement action, but would remove the private right of action provided to individuals and entities. Additionally, all rule-specific enforcement methods would be removed, and OCR would instead rely on enforcement mechanisms in the underlying statutes – Title VI of the Civil Rights Act of 1964, Title XI of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973 – along with OCR's regulations implementing those laws.

Comments on the Proposed Rule will be accepted by OCR 60 days from the date of publication in the Federal Register.

Footnote

1 45 C.F.R. § 92.4

2 Id. § 92.4.

3 Id.

4 Id. § 92.201.

This article is presented for informational purposes only and is not intended to constitute legal advice.