The Section 1557 Final Health Care Civil Rights Rule is Here! An Introduction of some of the new rule’s language and disability access highlights

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On May 6, 2024, the Federal Register published the United States Department of Health and Human Services’ (“HHS”) Section 1557 of the Affordable Care Act final rule. Section 1557 and its implementing regulations are the hallmark of health care civil rights regulations, prohibiting discrimination on the basis of race, color, national origin, language, age, disability or sex in covered health care programs and activities. With the May 6 publication, the final rule becomes the law in 60 days, on July 5, 2024.

The final rule has many new requirements that will directly impact providing language and disability access services. They include:

  • Expanding the scope of Section 1557 nondiscrimination requirements to include all of HHS’ health programs and activities, including but not limited to those administered by the Indian Health Service, Centers for Medicare & Medicaid Services and the National Institutes of Health.
  • Prohibits discriminatory use of AI and other “patient care decision support tools” in health care decision making. This is the first time that federal law will clearly prohibit the discriminatory use of AI in making patient care decisions. The support tools include, but are not limited to: flowcharts; formulas; equations; calculators; algorithms; utilization management applications; software as medical devices (SaMDs); software in medical devices (SiMDs); screening, risk assessment, and eligibility tools; and diagnostic and treatment guidance tools;”
  • Determines that Medicare Part B payments constitute federal financial assistance, and therefore, health care providers and suppliers receiving Medicare Part B funds are covered by the final rule and are prohibited from discriminating on the basis of race, color, national origin, age, sex, sexual preference, gender identity, and disability.
  • Clarifies that covered health programs and activities offered via telehealth must also be accessible to individuals with limited English proficiency and individuals with disabilities.
  • Requires covered entities to inform people that language assistance services and accessibility services are available at no cost to patients. Covered entities are required to provide notices in prominent locations both physically and on their websites, make them available upon request, and include them with a specific list of communications. The notice must be provided in English and in at least the 15 most common languages spoken by people with limited English proficiency in the specific state(s) served by each covered health care entity. Covered entities must implement policies and procedures to ensure compliance with the new rule and are required to train their staff, including physicians and leadership, on compliance with Section 1557 policies and procedures.
  • Requires covered entities to provide and post notice informing individuals of their civil rights under Section 1557. Covered entities with 15 or more employees are also required to have a civil rights grievance procedure and an employee designated to coordinate compliance with the final rule.
  • When translation services are required under this part, a covered entity must utilize the services of a qualified human translator in its health programs and activities. If a covered entity uses machine translation when the underlying text is critical to the rights, benefits, or meaningful access of an individual with limited English proficiency, when such accuracy is essential, or when the source documents or materials contain complex, non-literal or technical language, the translation must be reviewed by a qualified human translator.                                                                                                                              HHS has reduced the categories of documents requiring human vetting of machine translations to only documents and materials that are the most essential or vital to a limited English proficient person trying to access health care. The final rule focuses human vetting of machine translations on the most essential documents that are necessary for “meaningful access” to federally subsidized health care programs and services.
  • A covered entity that employs fifteen or more persons must designate and authorize at least one employee, a “Section 1557 Coordinator,” to coordinate the covered entity’s compliance with its responsibilities under section 1557 and this part in its health programs and activities, including the investigation of any grievance communicated to it alleging noncompliance with Section 1557 or alleging any action that would be prohibited by Section 1557 or this part. As appropriate, a covered entity may assign one or more designees to carry out some of these responsibilities, but the Section 1557 Coordinator must retain ultimate oversight for ensuring coordination with the covered entity’s compliance

 

The new Section 1557 final rule applies to any health care program, service, or activity that receives federal funding, including providers receiving Medicare and Medicare Part B reimbursement under a Medicare agreement, patients receiving care at a federally funded health care center, and patients federally funded health insurance.

The Center for American Progress estimates that the new final rule will have significant reach into the vast American health care industry, including:

  • The roughly 99 percent of non-pediatric physicians and nearly all hospitals in the United States accept Medicare and bill services under Medicare participation agreements.
  • Approximately 1,400 health centers—with more than 15,000 service delivery sites across all 50 states, U.S. territories, and the District of Columbia—are funded by the federal Health Resources and Services Administration (HRSA) Health Center Program, providing care to approximately 30.5 million people.
  • In 2022, roughly 127 million people, or 38.5 percent of Americans, were covered by federally funded health insurance, such as TRICARE and Medicaid.

The new rules are far-reaching in their protection against health care discrimination. They also have many language and disability access requirements to help ensure that health care is open and accessible to everyone.

 

© Bruce L. Adelson 2023. 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.

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