New Regulation Prohibits Discrimination in Health Care: Key Highlights for Aging Advocates

Aging advocates working to promote health equity got some good news and extensive summer reading last week. After much anticipation, the U.S. Department of Health and Human Services (HHS) released final regulations that seek to transform care for underserved communities by ending discrimination in health care services and settings.

The regulations codify Section 1557 of the Affordable Care Act (ACA). In drafting the statute, Congress recognized the need to ensure all individuals have access to health services and insurance, regardless of their race, color, national origin, sex, age or disability. It applies to every health program or activity that receives HHS funding, including Medicare and Medicaid managed care plans, aging network entities like home health care agencies, health clinics, community health centers, and most physicians. HHS itself and state Medicaid and public health agencies also are covered.

The final rule is effective July 18, 2016, with additional time available only in limited circumstances. The regulation will enhance protections for diverse older adults in several key ways.

Enhanced Language Access Requirements:

Older adults who are limited English proficient (LEP) should see enhanced access to their health care information. The new regulation requires that, in any significant mailing, health care entities must include taglines in at least the top 15 languages spoken by LEP individuals in that particular state. The taglines say that free language assistance services are available. They must also be posted in offices and on websites, along with a notice of consumer rights.

Health care entities must also offer timely free access to qualified interpreters and must translate certain “vital” communications. HHS declined to set bright line requirements for translation and other specific language services, relying instead on “an evaluation of the nature and importance of the health program or activity and the particular communication at issue” to the LEP individual.

Prohibition on Sex Discrimination:

Section 1557 is the first law of its kind to prohibit sex discrimination in health care settings. Sex discrimination includes discrimination based on gender identity. In an important step forward for health equity, all health care entities are required treat individuals consistent with their gender identity. The regulation clarifies that categorical or automatic exclusions of coverage for all health services related to gender transition are prohibited. Further, insurers and providers may not deny or limit coverage or treatment for health services that are ordinarily or exclusively available to individuals of one sex to a transgender individual for whom such services are medically appropriate.

The protections against discrimination on the basis of sex also extend to discrimination based on pregnancy and sex stereotyping, including stereotyping of gender roles.

A Private Right of Action for 1557 Violations:

The federal regulation clarifies that 1557 creates an express private right of action for health discrimination claims. The regulation cites Rumble v. Fairview Health Services (2015) and its finding that Congress intended to create the single, private right of action to ensure a single standard of enforcement, regardless of whether a plaintiff’s claim is based on race, sex, age or disability. Further, HHS made clear that claims can be based on disparate impact, as was also discussed in Rumble.

It is important to note that OCR has been investigating 1557 complaints since the ACA became law in 2010, and individuals can file a complaint here even before the regulations go into effect.

No Expansion of Current Religious Exemptions:

While it does not replace existing regulations, like the Religious Freedom Restoration Act (RFRA), HHS reiterates that Section 1557 itself contains no religious exemption, and it does not expand on any of the existing exemptions.

We are concerned about two elements of the final regulation:

Prohibition of Sex Discrimination does not Explicitly Encompass All Sexual Orientation Discrimination:

The final regulation does not resolve whether discrimination on the basis of sexual orientation alone is a form of sex discrimination. However, as HHS’ Office of Civil Rights (OCR) stated in their FAQ’s: “OCR will evaluate complaints that allege sex discrimination related to an individual’s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under 1557.” The Department is clear about its support for the prohibition of sexual orientation discrimination as a matter of policy and has shared that as the case law develops on sexual orientation discrimination, HHS will issue additional guidance as appropriate.

Medicare Part B Providers Are Not Included as Covered Entities:

Justice in Aging is extremely disappointed that the regulation retains a compliance exclusion for Medicare Part B providers. In commentary, the Office of Civil Rights notes that it does not believe the regulation is the appropriate vehicle to modify the Department’s position on excluding Medicare Part B providers as covered entities. HHS asserts that the practical effects of the Part B exclusion will be limited because many Part B providers receive other forms of Federal financial assistance; however, we believe this analysis of the practical impacts misses the point that there is no justification for such an exclusion.

Justice in Aging will continue to advocate to ensure all Medicare providers will be subject to Section 1557’s nondiscrimination requirements. A more thorough discussion on the need to rescind the Part B exclusion is included in our November comments.

Stay tuned for more from Justice in Aging on the regulation’s impact on the aging network and Medicare beneficiaries.

About Fay Gordon

Fay Gordon is a Staff Attorney in Justice in Aging's Oakland office