Neville M. Bilimoria

This summer, the US Department of Health and Human Services proposed a rule implementing Section 1557 of the Affordable Care Act that prohibits discrimination on the basis of race, color, national origin, sex, age and disability in certain health programs and activities. 

It might seem like it would be adding more to a provider’s to-do list. But to HHS, I have one thing to say: Good going. 

This latest proposed rule rewrites a Trump-era regulation from 2020 that itself rewrote an Obama-era regulation from 2016. It restores and strengthens civil rights protections for patients and consumers in all federally funded health programs and HHS programs, and it’s about time.

It’s about time because members of racial and ethnic groups that have historically faced discrimination and structural disadvantages in the United States have long experienced disproportionately poor health status as well, according to HHS. Indeed, COVID-19 has highlighted many health disparities in our country, especially with economically underserved areas, oftentimes with diverse populations receiving the brunt of a “lack of good healthcare” in our society.  

During COVID, we’ve seen health disparities in the form of diverse populations not receiving the healthcare they needed as robustly as white, non-diverse populations. While “discrimination” in healthcare for various diverse populations has been ongoing for many decades in our country, COVID brought the issue more to the forefront … again. 

Key highlights of the anti-discrimination rule are as follows:

  • Reinstates scope of Section 1557 to cover HHS’ health programs and activities
  • Clarifies that Section 1557 applies to health insurance issuers that receive federal financial assistance
  • Prohibits discrimination on the basis of sex to include sexual orientation and gender identity
  • Covered entities must have policies and procedures and a compliance coordinator to prevent and combat discrimination
  • Covered entities must train staff on provision of language assistance services for Limited English Proficiency individuals and effective communication and reasonable modifications to policies and procedures for individuals with disabilities

While HHS is undertaking this rulemaking, both the statute and the current regulation are in effect. That means that if anyone feels they have been discriminated against on the basis of race, color, national origin, sex, age or disability, they can file a complaint with the Office for Civil Rights, even while the final rule is being worked out.  

HHS encourages all stakeholders, including patients and their families, health insurance issuers, healthcare providers, healthcare professional associations, consumer advocates, and government entities, to submit comments, which are due no later than Nov. 2, 2022.

Provider requirements for Section 1557 

Under the proposal, covered entities would be required to write and implement a range of Section 1557 policies and procedures. These include a nondiscrimination policy, grievance procedures, language access procedures, procedures for auxiliary aids and services, and procedures for reasonable modifications for individuals with disabilities. Written policies and procedures would be designed to reflect the size, complexity, and the type of health programs or activities but would have to reflect certain mandatory content. 

Covered entities could combine these policies and procedures with existing standards for other civil rights laws and would have to comply with specific record-keeping and confidentiality requirements. 

In a new requirement that goes beyond the 2016 and 2020 rules, covered entities would be required to train employees on these new Section 1557 policies and procedures. This requirement would only extend to staff who are relevant for compliance (such as those involved in direct interactions with patients, clients or the public) and would be limited to the entity’s Section 1557 policies and procedures themselves. Initial training is proposed to be provided within one year of the final rule’s effective date; additional training would be required within a reasonable time after any material change to the policies and procedures.

HHS also would reinstate a prior requirement from the 2016 rule that each covered entity with 15 or more employees designate a Section 1557 compliance coordinator and adopt written grievance procedures to handle complaints about alleged violations of Section 1557.  HHS had eliminated these requirements in the 2020 rule, reasoning that separate procedures for Section 1557 are not needed. The department now takes the view that a designated Section 1557 coordinator would help ensure compliance and enable more efficient resolution of potential grievances.

To this end, HHS proposes a list of responsibilities for the Section 1557 coordinator. Examples of minimum responsibilities include receiving, reviewing and processing grievances; coordinating record-keeping requirements; and coordinating employee training. Although a Section 1557 coordinator would have to retain ultimate oversight for coordinating compliance, HHS would newly allow covered entities to spread these duties across multiple staff by allowing entities to assign one or more designees to carry out the responsibilities of the compliance coordinator.

While facing this new proposed rule is probably the last thing that nursing facilities want to hear about right now — new regulations! — it is hard to find fault with HHS’ goal of eliminating discrimination and recognizing diversity in healthcare.  

Indeed, the proposed rule does a good job citing the plethora of healthcare statistics that show the very real healthcare disparity as a result of healthcare discrimination in the US As such, facilities should be ready to comment on, and face head-on this onslaught of regulations to help effectuate non-disparate treatment in facilities in the spirit of equality in healthcare for all.  

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [email protected].

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.