Federally funded healthcare services for gender transitioning and women’s services remain on ice while the Department of Health and Human Services (HHS) goes back to the drawing board to alter the parts of its 2016 final rule on nondiscrimination that are being challenged by some states in court. However, hospitals, physicians and other programs must still comply with the rest of the rule, which implements Section 1557 of the Affordable Care Act (ACA).
Gender Provisions Still on Hold
On July 10, 2017, a federal judge in Texas said HHS could reconsider the part of its Nondiscrimination in Health Programs and Activities final rule that defines discrimination on the basis of sex as encompassing transgender identity, sex stereotyping and termination of pregnancy. The ruling effectively holds in place an earlier injunction granted to several states that stopped the HHS Office for Civil Rights (OCR) from enforcing the rule to cover transgender healthcare and birth control services.
HHS’s goal in its final rule on nondiscrimination, promulgated under the Obama administration, was to build on federal civil rights laws “to prohibit sex discrimination in health care,” according to a summary of the rule by the agency. By requiring federally funded health programs and activities to cover treatment for “individuals consistent with their gender identity,” states were required to cover services related to surgical transitioning – not exactly one of the Trump administration’s priorities. They were also forbidden from discriminating with regard to women’s services relating to abortion and birth control.
Under the new administration, HHS seems to have moved to the side of the plaintiffs in the case challenging the rule. “New leadership at HHS has now had time to scrutinize the two aspects of the Rule at issue in this case and has concerns as to the need for, reasonableness, and burden imposed by those parts of the Rule,” said the agency in its motion for the stay. “HHS takes the concerns of the Court seriously and should be given the opportunity to initiate rulemaking proceedings to reconsider the Rule.”
Limited English Proficiency and Disability Provisions
Despite the hold on these controversial parts, the rest of the final rule remains in effect, and providers, plans and programs that receive federal healthcare dollars (“covered entities”) must comply with the ACA’s protections against race, age, disability and other forms of discrimination, as OCR will continue to enforce those, according to HHS.
The two major changes for most covered entities involves individuals with disabilities and limited English proficiency (LEP). Covered entities must now ensure “meaningful access” for individuals with limited English proficiency by publishing taglines to let patients with LEP know there are language assistance services available, and they must offer a timely qualified interpreter. No more calling on an unqualified bilingual staff member to help out with translation in a pinch.
For individuals with disabilities, according to HHS’s summary, covered entities must:
- Ensure access for patients with disabilities to “all programs and activities provided through electronic and information technology”
- Ensure “the physical accessibility of newly constructed or altered facilities”
- Provide appropriate auxiliary aids and services for individuals with disabilities
- Stop using any marketing practices or benefit designs that discriminate on the basis of disability and other prohibited bases
Ensure Your Facility or Practice’s Compliance
To find out more about how to comply with the nondiscrimination final rule, even as it undergoes some major bumps on the road, join ProfEdOnDemand’s webinar “New Federal Law for Hospitals, Section 1557 Enforcement by OCR and the CMS Hospital CoPs.” Healthcare industry veteran Sue Dill Calloway discusses the final rule as it applies to hospitals and other healthcare providers such as physician offices and nursing homes. Sue also covers CMS’s proposed changes to the hospital CoPs that would implement this new law under the Hospital Improvement Act.
