Proposed Rule re: ACA Section 1557
On June 14th, 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. The HHS initiated a 60-day public comment period that ended on August 13th. More than 130,000 comments were submitted, many of them critical of the proposed changes.
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.