On June 12, 2020, the Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS) published the long-awaited final rule which significantly changes several of the anti-discrimination provisions of Section 1557 of the Affordable Care Act. The final rule, which is a departure from the agency’s previous interpretation of the rules which were enacted 2016 during the Obama administration. Since, the enactment of the 2016 rules, there have been numerous legal challenges to these provisions in federal court. HHS believes that these final rules will reduce or eliminate provisions that they state were ineffective, unnecessary, and confusing and will save roughly covered entities roughly $2.9 billion in costs.
2016 Section 1557 Requirements
Section 1557 of the ACA were the anti-discrimination provisions geared at ensuring all individuals had access to essential benefits. When originally released in 2016, the Section 1557 rules prohibited discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities, including discrimination on the basis of pregnancy, gender identity, and sex stereotyping. The 2016 Rule also required that covered entities:
- Establish a written Grievance Procedure.
- Identify and maintain a Compliance Coordinator.
- Publish non-discrimination notices in the top 15 languages spoken in the covered entity’s state.
- Publish taglines informing individuals of the availability of aides and services in the top 15 languages spoken in the covered entity’s state.
- Make available assistance for individuals with Limited English Proficiency (LEP) and those with disabilities, including communications related disabilities.
- Include the mailing of non-discrimination notices and taglines in every “substantial communication” with individuals.
- Included non-discrimination protections for individuals “on the basis sex” which was interpreted by OCR to include gender identity, sexual orientation, and termination of pregnancy.
2020 Section 1557 Final Rule
The Final Rule eliminated several key provisions of the 2016 Rule. The provisions that were eliminated included:
- Discrimination protections for individuals “on the basis of sex”
- Specific non-discrimination provisions “on the basis of sex”, including gender identity, sexual orientation, and termination of pregnancy.
- Written Grievance Procedure.
- Compliance Coordinator.
- Publishing of non-discrimination notices in top 15 languages informing individuals of aides and services for individuals with Limited English Proficiency (LEP).
- Publishing of taglines in top 15 languages informing individuals of aides and services for individuals with Limited English Proficiency (LEP).
In addition to eliminating certain provisions, the final rule also relaxed the requirements relative to providing meaningful access to interpreter services for individuals with Limited English Proficiency (LEP). Under the 2016 rule, the agency assessed compliance with the meaningful access requirement by whether a covered entity established and implemented a Language Access Plan. This included providing access to interpreter services to individuals with LEP. The 2020 final rule requires covered entities only make “reasonable efforts” to ensure meaningful access to aides and services for individuals with LEP. However, the final rule does not change the requirements for meaningful access for individuals with disabilities or communication related disabilities.
The Bottom Line for EMS Providers
When the 2016 Section 1557 rule was enacted, the AAA sought guidance from OCR due to what we perceived to be compliance challenges for mobile-based healthcare providers. Our concerns were related to how mobile-based healthcare providers can ensure that the public and the patients we serve receive adequate notice of the protections afforded under Section 1557. As is often the case, when new regulations are enacted, they are enacted for standard “brick and mortar” healthcare providers, not ambulance services. At the time, our guidance was to post the required notices and taglines on your organization’s website and in the patient signature areas of your patient care report.
From a practical perspective, the enactment of this final rule will have limited impact for ambulance providers. Presuming an ambulance service’s compliance with the provisions of the 2016 rule, member companies can decide if they wish to eliminate their existing Compliance Coordinator position and Grievance Procedure. However, OCR still requires a covered entity to have written process for handling discrimination complaints. Therefore, it may be beneficial to simply maintain the 2016 requirements to ensure you can demonstrate compliance.
One welcome change is the elimination of the need to include the Section 1557 non-discrimination notices and taglines in every “substantial communication” with individuals. Many members voiced that they incurred a significant expense mailing the nondiscrimination notice and tagline requirements in every invoice or patient communication. This often added several additional pages to all patient communications which increased printing and postage costs substantially. Our recommendation is for ambulance providers to continue to make the non-discrimination notices and taglines available on your organizational website and in any electronic communications as these mediums do not significantly increase costs.
OCR has numerous compliance assistance documents on their website. Additionally, members can contact the AAA for assistance with these regulatory changes.