By Allison Shelton and Monique Pena, Brown & Fortunato, P.C.
In a final rule published on June 19, 2020 (2020 Final Rule), the U.S. Department of Health and Human Services, Office for Civil Rights (OCR) significantly reduced requirements placed on health care entities and narrowed OCR’s interpretations on prohibited discrimination. The 2020 Final Rule was adopted under Section 1557 of the Affordable Care Act which prohibits discrimination in health care on the basis of race, color, national origin, sex, age or disability in accordance with various federal laws, such as Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973.
The 2020 Final Rule is OCR’s second round of rulemaking under Section 1557. OCR first published rules on May 18, 2016 (2016 Rule). The 2020 Final Rule eliminates and revises various requirements adopted under the 2016 Rule. For example, the 2020 Final Rule eliminates requirements for a compliance coordinator and grievance procedures. Two of the most significant changes in the 2020 Final Rule relate to notice requirements and sex discrimination.
The 2016 Rule required health care entities to take certain steps designed to provide meaningful access to health care for individuals with limited English proficiency (LEP). Steps mandated by the 2016 Rule included providing notices of nondiscrimination and including taglines in certain communications that explain the availability of language assistance. Such taglines had to be translated in the top 15 non-English languages spoken in the state.
The 2020 Final Rule removes the mandate for health care entities to provide certain nondiscrimination notices and taglines to patients. According to OCR, the notices and taglines were not proven to be effective at providing meaningful access to health care and were overly burdensome and costly. Nonetheless, the requirement for meaningful access to health care for individuals with LEP remains. Thus, the 2020 Final Rule still requires entities to provide taglines whenever such taglines are necessary to ensure meaningful access. OCR anticipates the elimination of the tagline and notice requirements will relieve the health care industry of approximately $2.9 billion in regulatory costs over the next five years.
In addition to eliminating notice and tagline requirements, the 2020 Final Rule removes language expressly prohibiting discrimination based on gender identity, gender expression, sex stereotyping, and termination of pregnancy. The 2016 Rule defined discrimination “on the basis of sex” to include discrimination based on “gender identity” or “termination of pregnancy.” Historically, OCR has not acted on these provisions because, in late 2016, the U.S. District Court for the Northern District of Texas enjoined OCR from enforcing the provisions.
In adopting the 2020 Final Rule, OCR concluded that language regarding sex discrimination in the 2016 Rule “exceeded the scope of authority delegated by Congress in Section 1557.” As a result, the 2020 Final Rule removes the previous definition of discrimination “on the basis of sex.” Further, OCR did not include any definition of sex discrimination in the 2020 Final Rule. Rather, OCR opted to rely on the meaning applied to the term under Title IX of the Education Amendments of 1972. In addition to the removal of the definition for sex discrimination, OCR removed related provisions designed to protect against discrimination based on gender identity.
The 2020 Final Rule was issued days before the Supreme Court’s decision in Bostock v. Clayton County, Georgia, concluding that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on gender identity and sexual orientation, which includes discrimination against lesbian, gay, bisexual, and transgender people. Interestingly, in the preamble to the 2020 Final Rule, OCR acknowledged “that a holding by the U.S. Supreme Court on the meaning of ‘on the basis of sex’ under Title VII will likely have ramifications for the definition . . . under Title IX” (which is the definition relied upon by OCR for the 2020 Final Rule). While it is unclear what impact the Supreme Court decision will have on the application of the 2020 Final Rule, it is likely OCR’s narrowing of sex discrimination in the Final Rule will be challenged in light of the decision.
The Final Rule goes into effect on August 18, 2020. While the 2020 Final Rule includes many significant changes, not all provisions from the 2016 Rule have been eliminated. For example, the 2020 Final Rule maintains previous protections that ensure physical access for individuals with disabilities and appropriate communication technology to assist persons who are visually or hearing impaired. Over the next month, providers should review the 2020 Final Rule and adjust policies and practices adopted under Section 1557 as reasonable and appropriate for their organizations. Due to the recent Supreme Court decision in Bostock, however, providers may want to seek legal counsel on any proposed changes to policies or practices relating to sex discrimination.