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 Trump Administration Proposes Revamp of Obama-Era Nondiscrimination Rule

The Department of Health and Human Services (HHS) Office of Civil Rights (OCR) has proposed a new rule to replace the Obama-era nondiscrimination requirements in the Affordable Care Act’s Section 1557. The draft would ease regulatory burdens on health care companies by narrowing the scope of the nondiscrimination provisions that address protections for transgender individuals and women who have had an abortion.

A key part of the OCR proposal would eliminate the requirement that regulated health companies distribute nondiscrimination notices and “tagline” translation notices in at least 15 languages in “significant communications” to patients and customers.

In a fact sheet accompanying the draft rule, OCR said these tagline notices cost the health care industry billions of dollars that are ultimately passed on to consumers. The agency also said data do not show that the notices have produced the intended benefit for individuals with limited English proficiency. Notably, the proposal to eliminate taglines would “relieve” taxpayers of $3.6 billion in unnecessary costs over five years, OCR said.

The agency stressed that “the proposed rule would maintain vigorous civil rights enforcement of existing laws and regulations prohibiting discrimination on the basis of race, color, national origin, disability, age, and sex, while revising certain provisions of the current Section 1557 regulation that a federal court has said are “likely unlawful.”

An expert in the long term and post-acute care profession says regardless of the proposal, in a broader sense skilled nursing center providers should be aware that they must comply with existing Requirements of Participation (RoP), including providing information and notices such as those on resident rights, both orally and in writing in a language and manner the resident understands, including Braille.

Further, the source says facilities must ensure all residents are able to exercise their rights as outlined in the RoP and as guaranteed under federal and state laws and regulations, without discrimination or reprisal.

As for the legal reference, OCR said this relates to the Dec. 31, 2016, decision by the U.S. District Court for the Northern District of Texas in Franciscan Alliance, Inc. et al. v. Burwell, which preliminarily enjoined HHS’ attempt to prohibit discrimination on the basis of gender identity and termination of pregnancy as sex discrimination in the Section 1557 regulation.

“This federal court concluded the provisions are likely contrary to applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act. The preliminary injunction applies on a nationwide basis. A separate federal court in North Dakota agreed with the reasoning of the Franciscan Alliance decision, and stayed the rule’s effect on the plaintiffs before it,” OCR said.

These court actions mean that HHS does not have legal authority to implement the provisions on gender identity and termination of pregnancy in light of the court’s injunction, which remains in full force and effect today, the agency said.

In a summary of other parts of the new proposal, OCR said the draft would retain the current Section 1557 regulation’s qualifications for foreign language translators and interpreters for non-English speakers, and its limitations on the use of minors and family members as translators or interpreters.

Also, under the proposed rule, regulated entities would still be required to submit to HHS a binding assurance of compliance with Section 1557.

Notable other changes in the proposal would require that HHS apply Congress’ words using their plain meaning when they were written, instead of attempting to redefine sex discrimination to include gender identity and termination of pregnancy.

“These redefinitions were preliminarily enjoined because a federal court found they were unlawful and exceeded Congress’ mandate. The proposed rule would not create a new definition of discrimination ‘on the basis of sex,’” OCR said. “Instead, HHS would enforce Section 1557 by returning to the government’s longstanding interpretation of ‘sex’ under the ordinary meaning of the word Congress used.”

HHS also proposes to amend 10 other regulations, issued by the Centers for Medicare & Medicaid Services, by implementing the prohibition on discrimination on the basis of sex to make them consistent with the approach taken in the proposed Section 1557 rule.

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