In our October 11 webinar, Jinny Bromberg and Bruce Adelson provided their expert opinions in about the newly proposed health care civil rights rules under Section 1557 of the Affordable Care Act. The proposals reflect lessons learned by the U.S. Department of Health and Human Services (HHS) during the COVID-19 pandemic and are also intended to eliminate any doubts about the HHS-subsidized programs, services, and activities covered by Section 1557.
The proposed rules contain many new sections and requirements. In our webinar, Jinny and Bruce focused on just a few of these proposals to highlight the most significant changes that may await health care providers.
- Requires entities to give staff training on health care civil rights requirements, including but not limited to the provision of language assistance services for limited English proficient (LEP) individuals and effective communications for people with disabilities:
For many years, the Departments of Justice and Health and Human Services have regularly required health care civil rights staff training for hospitals, clinics, and health systems in federal compliance agreements and consent decrees. Now, the proposed rules will, for the first time, incorporate training requirements into federal law once the proposed Section 1557 rules become final regulations.
Webinar video: https://www.brombergtranslations.com/wp-content/uploads/2022/11/1_Training.mp4
- Prohibits the use of machine translations unless first reviewed by a qualified human translator when accuracy is essential or the source materials contain complex, non-literal, or technical language:
During the COVID-19 pandemic, several states received complaints from limited English proficient (LEP) people that they were unable to sign up for COVID-19 vaccines on websites using machine translation or found translated information confusing because of translation inaccuracies. The prevalence of machine translation inaccuracies has been documented many times in myriad articles and studies. For example, such studies have found that no matter the language or form of machine translation, machine translation error rates are so high as to be “unacceptable for actual deployment in health settings.
Webinar video: https://www.brombergtranslations.com/wp-content/uploads/2022/11/2_Machine-Translation.mp4
- Requires federally subsidized health organizations employing fifteen or more persons to designate and authorize at least one employee, referred to as “Section 1557 Coordinator,” to coordinate the covered entity’s compliance with its responsibilities under Section 1557:
Consistent with federal enforcement and federal laws such as the 1973 Rehabilitation Act, the Section 1557 Coordinators are essentially the responsible employees tasked with ensuring compliance by each health care provider covered by the proposed rule. The Section 1557 Coordinator will be responsible for such tasks as implementing the new rules, overseeing health care discrimination complaints, and ensuring that procedures for communicating with LEP people and people with communication disabilities are in place and compliant with Section 1557.
Webinar Video: https://www.brombergtranslations.com/wp-content/uploads/2022/11/3_Coordinator.mp4
- For the first time, explicitly prohibits discrimination in the use of clinical algorithms to support decision-making in health care programs and activities:
Clinical algorithms are tools used to guide health care decision-making and can range in form from flowcharts and clinical guidelines to complex computer algorithms, decision support interventions, and models. End-users, such as hospitals, providers, and payers (e.g., health insurance issuers) use these systems to assist with decision-making for various purposes. Clinical algorithms are used for screening, risk prediction, diagnosis, prognosis, clinical decision-making, treatment planning, health care operations, and allocation of resources, all of which affect the care that individuals receive. Recent studies have found that health care tools using clinical algorithms may create or contribute to discrimination prohibited by Section 1557, and as a result of their use in health care decision-making may lead to poorer health outcomes among members of historically marginalized communities.
HHS believes that the proposed rule will put health care providers on notice that they cannot use discriminatory clinical algorithms and may need to make reasonable modifications in their use of such algorithms to ensure non-discrimination.
Webinar video: https://www.brombergtranslations.com/wp-content/uploads/2022/11/4_Algorithms.mp4
- Clarifies for the first time that nondiscrimination requirements applicable to health programs and activities include those services offered via telehealth, which must be accessible to LEP individuals and individuals with disabilities;
The pandemic resulted in greatly expanded use of telehealth services. However, such expansion simultaneously revealed health inequities in the use of telehealth. Various studies reveal myriad disparities in telehealth access based on race and disability. One study found “significant” racial disparities in telehealth use during the COVID-19 pandemic, which may lead to the worsening of pre-existing health disparities. HHS also found that spoken language and disability access were frequently not provided to telehealth patients who needed such access to communicate effectively with their health care providers.
Telehealth services have always been clearly covered by Section 1557’s non-discrimination prohibitions. However, to remove any doubt that telehealth is covered by Section 1557 and other federal health care civil rights requirements, HHS decided to include a specific provision in the proposed rules regarding telehealth especially because of the ongoing, expanded prevalence of telehealth use.
Webinar video: https://www.brombergtranslations.com/wp-content/uploads/2022/11/5_Telehealth.mp4
- Interprets Medicare Part B for the first time as federal financial assistance, thus bringing providers who accept Medicare Part B reimbursement within the law’s requirements:
According to HHS, Medicare Part B payments constitute federal financial assistance and providers subsidized as a result of those payments are recipients. This new position is very significant. It brings private practice doctors, nurses, and dentists who accept Medicare from patients within the language access requirements of federal health care law.
In making this change, HHS was influenced by the fact that so many more providers participate in Medicare Part B now than at any other time, making Medicare payments for services much more widespread than at any previous time. According to HHS, “approximately two-thirds of providers enrolled in the Medicare Part B program are “participating providers,”622 i.e., providers that bill and are paid by the Medicare program. Those providers have become direct recipients of federal financial assistance. This significant change in facts provides ample support for the Department’s changing interpretation as applied to those providers.”
Webinar video: https://www.brombergtranslations.com/wp-content/uploads/2022/11/6_Medicare-Plan-B.mp4
© Bruce L. Adelson 2022. 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.