Proposed Rule re: ACA Section 1557

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On May 24th, the Office of Civil Rights of the Department of Health and Human Services (HHS) issued a new proposed rule that would significantly weaken the current rules interpreting Section 1557 of the Affordable Care Act (ACA).  Section 1557 prohibits discrimination by health programs or facilities that receive federal funds from discriminating based on race, color, national origin, age, disability, or sex.  

HHS proposes to make changes to the Section 1557 rules that would, among other things:

  • Limit the health programs and facilities subject to the non-discriminination requirements in Section 1557, including exempting private health insurance;
  • Remove protections against discrimination for LGBTQ people, including based on gender identity and sexual orientation;
  • Weaken requirements that help ensure meaningful access to people with limited English proficiency;
  • Make it more difficult for people to access reproductive services;
  • Remove requirements to provide notices and information about non-discrimination protections and the availability of language assistance services; and
  • Limit the right of individuals to enforce their rights under Section 1557 in court.

The proposed rule also seeks comment on whether HHS should make changes to Section 1557’s accessibility requirements for people with disabilities, including:

  • Effective Communication for People with Disabilities: The proposed rule asks about removing current requirements for entities with less than 15 employees to provide auxiliary aids and services to people with disabilities accessing care and treatment.
  • Accessibility Standards for Buildings and Facilities: The proposed rule asks about removing current requirements that all covered entities must comply with the 2010 ADA Standards of Accessible Design.
  • Requirement to Make Reasonable Modifications: Section 1557 currently requires covered entities to make reasonable modifications to policies, practices, or procedures when necessary, to avoid discrimination on the basis of disability, except if the modification would fundamentally alter the nature of the health program or activity.  The proposed rule asks about completely removing this requirement or alternatively revising it to excuse entities from complying when it would cause them “undue hardship.”

Overall the proposed rule would severely weaken all of the ACA’s anti-discrimination protections for everyone, including people with disabilities.  For an analysis of all of the changes proposed to Section 1557, see this Q&A from the National Health Law Program and this analysis about impacts on people with disabilities.

The public has until August 13th to submit comments. It is critical that you make your voice heard opposing these rollbacks in the ACA’s discrimination protections.   

How to Submit a Comment

To submit a comment directly to the federal register, click here and follow the instructions on the page.  Check back here for sample comments.

Section 1557: Additional Information and Resources

Why is Section 1557 of the ACA important?

Section 1557 is the main anti-discrimination provision in the ACA.  It prohibits health programs or facilities that receive federal funds from discriminating based on race, color, national origin, age, disability, or sex. An individual cannot be excluded from participation in, denied the benefits of or subjected to discrimination on these bases by any health program or activity of which any part receives federal financial assistance. Section 1557 also applies to any program or activity that is administered by an agency of the federal government or any entity established under Title I of the ACA.

Lastly, Section 1557 incorporates four different existing federal civil rights laws (Title VI of the Civil Rights Act of 1964 addressing race, color, national origin, Title IX of the Education Amendments of 1972 addressing sex, the Age Discrimination Act of 1975 addressing age, and Section 504 of the Rehabilitation Act of 1973 addressing disability) and applies them to federally funded programs.

Resources on the Proposed Section 1557 Rule

Trump Administration Proposes to Undo Nondiscrimination Protections in Health Care, Families USA, June 14, 2019.

Rolling Back Civil Rights Protections in Health Insurance: The Proposed 1557 Rule, To the Point, June 12, 2019.

Memorandum: Proposed Changes to the ACA Anti-Discrimination Rules, Powers, Pyles, Sutter & Verville PC, June 12, 2019.

Q&A: Proposed Rollback of Nondiscrimination Protections Under the ACA’s Section 1557, National Health Law Program, June 4, 2019.

HHS Proposes to Strip Gender Identity, Language Access Protections from ACA Anti-Discrimination Rule, Health Affairs Blog, May 25, 2019.

APA Criticizes Administration Efforts to Weaken Federal Nondiscrimination Protections in Health Care, American Psychological Association, May 24, 2019

  

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