On July 5, the new Section 1557 Final Rule went into effect as federal law. The Final Rule has many new provisions, changing what used to be the law. Here are some updates about the Rule since July 5, including our in-person September 5 workshop to facilitate your new legal compliance obligations.
We are excited to invite you to our onsite workshop, on September 5th, 2024 to learn about Two Important Compliance Topics!
- Section 1557’s New Final Rule – Getting to Compliance
- What Does Digital Accessibility Mean for Your Organization?
Here’s what will be covered during the event:
- Review the recently released Section 1557 final rule
- Analyze key changes in the final rule from the current law
- Learn about WCAG and its importance for your website and other digital content
- Discuss best practices and effective solutions for compliance with Section 1557 and WCAG
- Date: September 5th, 2024
- Time: 2:30 – 5 p.m. EST.
- Location: East Lansing Public Library, 950 Abbot Rd | East Lansing, MI 48823
https://lp.constantcontactpages.com/cu/F5ltaPV/Section1557NewFinalRule
On August 5, “U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR), entered into a settlement with the New Jersey Imaging Network to resolve a civil rights complaint from an individual who uses a wheelchair, and was denied mammography because of her disability.” This case began as a complaint filed with HHS by a patient of New Jersey Imaging Network (“NJIN”), a New Jersey diagnostic imaging network that participates in Medicare under Title XVIII of the Social Security Act, 42 U.S.C. § 1396 et seq., and in Medicaid under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq.
The patient alleged that NJIN discriminated against the Complainant, who has a mobility-related disability and requires the use of a wheelchair, in violation of federal non-discrimination law. The Complainant alleges that NJIN refused to perform a Mammogram during her scheduled appointment, thereby denying her an equal opportunity to participate in or benefit from NJIN’s programs and services on account of her disability.
OCR will monitor compliance with the settlement for two years. A copy of the settlement agreement can be found at https://lnkd.in/ea-pvzij.
The settlement is like a big shot across the bow of health care, which is inarguably highlighted by OCR’s statement – “This action is just the latest in a series of efforts OCR has made to advance and protect the civil rights of people with disabilities. This includes the announcement of the Section 504 of the Rehabilitation Act of 1973 final rule and the Section 1557 of the Affordable Care Act final rule.”
Unlike some other new federal rules, OCR is not taking a passive approach to the new health care civil rights regs. Instead, OCR keeps signaling VERY clearly that Section 1557’s new regulations are here and OCR is paying attention to compliance and enforcement, where needed.
As contemplated, there has been significant federal court litigation about the Final Rule, focusing primarily on regulations that prohibit sexual orientation and gender identity discrimination. Three primary court decisions are summarized here:
- In Florida v. Department of Health and Human Services, No. 8:24-cv-1080-WFJ-TGW (M.D. Fla.), the court stayed 45 C.F.R. 92.101(a)(2)(iv), 92.206(b), 92.207(b)(3)-(5), and 42 C.F.R. 438.3(d)(4), in Florida. OCR also may not enforce the interpretation of discrimination “on the basis of sex” in 45 C.F.R. 92.101(a)(2)(iv), 92.206(b), or 92.207(b)(3)-(5) in Florida.
- In Tennessee v. Becerra, No. 1:24cv161-LG-BWR (S.D. Miss.), the court stayed nationwide the following regulations to the extent they “extend discrimination on the basis of sex to include discrimination on the basis of gender identity”: 42 C.F.R. 438.3, 438.206, 440.262, 460.98, 460.112; 45 C.F.R. 92.5, 92.6, 92.7, 92.8, 92.9, 92.10, 92.101, 92.206-211, 92.301, 92.303, 92.304; and enjoined HHS from enforcing the 2024 Final Rule “to the extent that the final rule provides that ‘sex’ discrimination encompasses gender identity.”
However, this court decision only affects HHS. It does not change patient rights. The decision does not cover health care providers because they were not sued and are not part of the case. The Tennessee v. Becerra federal court’s holding does not include any prohibition on people who allege LGBTQ discrimination in health care from suing health care providers. Health care providers are similarly not prohibited from preventing LGBTQ discrimination in HHS-funded health care.
- In Texas v. Becerra, No. 6:24-cv-211-JDK (E.D. Tex.), the court stayed the 2024 Final Rule in its entirety in Texas and Montana. This decision is broader than the other court cases referred to above. In this case, a federal court in Texas retroactively blocked the Final Rule from becoming law in Texas and Montana ONLY, keeping the Rule in suspended animation pending further decisions of the Texas court or an appeals court. So, in Texas and Montana, HHS cannot enforce the new rules, patients cannot sue to prevent LGBTQ health care discrimination, and HHS funded health care providers are essentially ordered not to protect people from sexual orientation and gender discrimination in medical care.
Stay tuned for further news and updates about the Section 1557 Final Rule. Join us live and in-person on September 5 for further discussion, insights, and best practices.
© Bruce L. Adelson 2024. All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.
Mr. Adelson’s blogs are a Bromberg exclusive.