May 24, 2019
HHS Proposes to Revise ACA Section 1557 Rule to Enforce Civil Rights in Healthcare, Conform to Law, and Eliminate Billions in Unnecessary Costs
Today, the U.S. Department of Health and Human Services (HHS) proposed regulatory reform related to regulations issued under Section 1557 of the Affordable Care Act (ACA). The proposed rule would maintain vigorous civil rights enforcement on the basis of race, color, national origin, disability, age, and sex, while revising certain provisions of the current Section 1557 rule that a federal court has said is likely unlawful. The proposal also would relieve the American people of approximately $3.6 billion in unnecessary regulatory costs over five years.
Conforming to the Text of our Laws
In Section 1557 of the ACA, Congress directed HHS to apply existing civil rights laws and regulations to healthcare and the ACA Exchanges, including a 1972 law (Title IX) prohibiting discrimination on the basis of sex in certain federally funded programs. In 2016, HHS issued a new rule that redefined discrimination “on the basis of sex” to include termination of pregnancy and gender identity which it defined as one’s internal sense of being “male, female, neither, or a combination of male and female.”
In response to a subsequent lawsuit by several states and healthcare entities, on December 31, 2016, a federal court preliminarily enjoined the rule’s gender identity and termination of pregnancy provisions on a nationwide basis, finding them contrary to the applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. A second federal court agreed. Because the preliminary injunction continues to be in effect, HHS cannot, and has not since the date of the injunction, enforced the rule’s provisions the court said are likely unlawful. The proposed rule would revise the provisions subject to those injunctions to conform with the plain understanding recognized by the court.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” said OCR Director Roger Severino. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives,” said Severino. “The proposed rule would accomplish both goals.”
Continued Robust Enforcement of Civil Rights Law
Under the proposed rule, HHS would continue to vigorously enforce prohibitions of discrimination on the basis of race, color, national origin, disability, age, and sex in healthcare, as Section 1557 provides. The proposed rule would also retain protections under the 2016 regulation that ensure physical access for persons with disabilities to healthcare facilities, and appropriate communication technology to assist persons who are visually or hearing-impaired. HHS’s proposed rule would also retain protections for non-English speakers, including the right to meaningful language access to healthcare, qualification standards for translators and interpreters, and limitations on the use of minors and family members as translators in healthcare settings. Regulated entities would also continue to be required to provide written assurance to the Department that they will comply with Section 1557’s civil rights provisions and the proposed regulation.
“We are committed to full enforcement of civil rights laws before, during, and after any rulemaking,” said Severino. “We are also committed to the elimination of regulations that contradict law or raise the costs of healthcare without achieving intended results.”
Removing Costly and Unnecessary Regulatory Burdens
The proposed revisions would eliminate $3.2 billion in unneeded paperwork burdens imposed by the 2016 rule. Covered entities report that the 2016 rule requires them to send billions of “tagline” notices each year informing patients and customers of their ability to have “significant documents” translated in at least 15 languages. When HHS adopted the 2016 rule, it projected notice and taglines costs of about $7.2 million in the first five years. Because the 2016 rule did not fully account for printing and mailing costs associated with these notices and taglines, it underestimated the burden of these requirements by over three billion dollars over five years. Instead of requiring regulated health companies to mail billions of paper taglines to mostly English speakers, the money saved could be used to more effectively address individual needs of non-English speakers such as by providing increased access for translators and interpreters.
The proposed Section 1557 rule estimates an additional savings of approximately $400 million over five years by eliminating duplicative requirements and reverting to well-established language access guidance, resulting in a total savings of approximately $3.6 billion in the first five years after finalization.
“As a child of Hispanic immigrants, I know how vitally important it is that people receive quality healthcare services regardless of the language they speak, and this proposal grants providers the needed flexibility for achieving that goal,” said Severino. “The American people are tired of unnecessary regulations getting in the way of access to affordable healthcare, and today’s proposal would remove $3.6 billion in regulatory burdens that are ultimately being passed down to patients,” Severino concluded.
Click to read the proposed regulation Factsheet on Section 1557.
*A Spanish version of this press release and the Factsheet will be provided in the near future.
Update (Sept. 15, 2020)
On October 15, 2019, the U.S. District Court for the Northern District of Texas issued an order in Franciscan Alliance, Inc. v. Burwell, No. 7:16-cv-00108, which vacated portions of HHS’s 2016 rule implementing Section 1557. The order and accompanying decision may be found here:
On August 17, 2020, the U.S. District Court for the Eastern District of New York issued an order in Asapansa-Johnson Walker v. Azar, No. 1:20-cv-02834, staying portions of the 2020 Final Rule’s repeal of portions of the 2016 rule and preliminarily enjoining HHS from enforcing the repeal of those provisions. The order may be found here:
On September 2, 2020, the U.S. District Court for the District of Columbia issued an order in Whitman-Walker Clinic v. HHS, No. 1:20-cv-01630, preliminarily enjoining HHS from enforcing portions of the 2020 Final Rule. The order and accompanying decision may be found here:
On October 29, 2020, the U.S. District Court for the Eastern District of New York issued an order in Asapansa-Johnson Walker v. Azar, No. 1:20-cv-02834, staying/enjoining additional portions of the 2020 Final Rule’s repeal of portions of the 2016 rule. The order may be found here:
* People using assistive technology may not be able to fully access information in these files. For assistance, contact the HHS Office for Civil Rights at (800) 368-1019, TDD toll-free: (800) 537-7697, or by emailing [email protected].