To: Chief Executive Officers, Legal Counsel and Government Affairs Staff
From: Jaclyn Greenberg, Policy Director, Legal Affairs and Sarah Chicoine, Legal Intern
Staff Contact: Jaclyn Greenberg, JD, LLM, Policy Director, Legal Affairs |JaclynG@wsha.org | (206) 216-2506
Subject: Section 1557 Nondiscrimination Final Rule
Purpose
The purpose of this bulletin is to inform hospitals and health systems of significant changes to the regulations implementing section 1557, the nondiscrimination provision of the Affordable Care Act (ACA). The new federal regulations reduce language access requirements, including eliminating notice and tagline requirements, and narrow the definition of “sex” as a basis for discrimination under section 1557, among other changes. The new regulations are scheduled to take effect on August 18, 2020.
Applicability/Scope
All hospitals and health systems, as recipients of federal funds, are subject to section 1557 and other federal anti-discrimination laws.
The final rule is scheduled to go into effect on August 18, 2020, although court challenges have begun and may prevent the final rule from going into effect on that date.
Recommendation
WSHA strongly recommends that hospitals maintain robust nondiscrimination and language access practices to meet the needs of their patients and communities. Language access and nondiscrimination are crucial tools to ensure patients receive the care they need, regardless of their sexual orientation, gender identity or preferred language.
Please review WSHA’s bulletin, Language Access Resources During COVID-19, for additional information.
Overview
The new rule’s key changes rollback many requirements put in place in 2016, under the previous administration, including removing notice and tagline requirements and narrowing the definition of “sex” as a basis for discrimination, and shrinking the applicability and scope of the regulations.
Even though the regulations implementing section 1557 will be different, if and when they go into effect, federal (and state) nondiscrimination and anti-discrimination laws are unchanged and remain enforceable.
Changes to Language Access
The following table sets out key changes under the new 1557 regulations compared to the existing 2016 regulations.
| Existing regulations under 1557 (2016) | New regulations under 1557 (2020) | |
| Orientation / Focus | Individual—protections apply to each individual with LEP. | Entity—protections are evaluated by looking at the LEP population and the entity’s resources as a whole. |
| Taglines | Requires short statements written in top 15 non-English languages in the entity’s state, indicating availability of language assistance services. | Taglines are no longer required. |
| Notice | Requires notice about people’s rights and remedies under section 1557 to be posted in conspicuous public location and on the entity’s website. | Notice is no longer required. |
| Compliance | · Considers whether the health care entity has an effective language access plan.
· Applies a two-factor test that focuses on the nature and importance of the health program or activity and the communication with the individual. |
· Removes reference to a language access plan.
· Establishes a four-factor, totality of circumstances test:
|
| Qualifications of Interpreters and Translators | Requires interpreters and translators be “qualified,” as defined by regulation. | Interpreters and translators must still be qualified, but the definition is repealed. |
| Remote Interpreting Services | Requires video interpreting services that are clear and audible. | Does not require video services unless necessary. Necessity based on four-factor test. |
| Cost/Timeliness Requirements | Translation and interpretation must be accurate, provided free of charge and in a timely manner. | New rule maintains this requirement. |
| Use of Family Members/Minors for Translation | Prohibits use of minors, accompanying adults, or reliance on multilingual staff as translators. | New rule maintains this requirement. |
Changes to Sex Discrimination
Unlike the 2016 rule, the new rule considers sex discrimination to only be discrimination based on the gender assigned at birth. If and when the new rule goes into effect, section 1557 will not prohibit discrimination based on gender identity, sexual orientation, status or termination of pregnancy or general sex stereotyping.
Reduces Applicability and Scope of Section 1557
The new rule significantly reduces the reach of section 1557’s protections. For example, health insurance companies are only subject to section 1557 for plans that receive federal funding. In comparison, the 2016 rule requires all activities of a health insurance company that receives federal funding to abide by the regulations. Additionally, while the 2016 rule required any health program or activity administered by a federal executive agency to follow section 1557, the new rule only requires compliance for federal agencies administering heath programs or activities under Title I of the ACA.
Other Changes
The final regulation makes several other changes, including but not limited to:
- Eliminating requirements for covered entities, including hospitals and health systems, to have a compliance coordinator and written grievance procedures.
- Repealing enforcement-related provisions and changes remedies.
Background
Section 1557 of the ACA builds on longstanding nondiscrimination laws and provides new protections, including a prohibition against sex discrimination in health programs and activities, and nondiscrimination requirements for health insurance programs and activities. In general, section 1557 prohibits discriminating based on race, color, national origin (including Limited English Proficiency), age, disability or sex.
Regulations implementing section 1557 were finalized by HHS in 2016 under the previous federal administration. Complaints about the financial and administrative burden associated with those regulations triggered the current administration to issue a Notice of Proposed Rule Making (NPRM) in May 2019, and the final regulations were released on June 19, 2020.
Since HHS released the final rule, the United States Supreme Court announced a landmark decision, Bostock v. Clayton County, holding that sex discrimination for employment purposes includes discrimination based on sexual orientation or gender identity. Litigation against the new section 1557 rules relying on this decision has already been commenced.
Apart from federal law, Washington’s law against discrimination (WLAD) prohibits discrimination based on sexual orientation, and sexual orientation is defined to include gender expression and identity that may differ from gender traditionally associated with that assigned at birth. Washington state law also prohibits insurance companies from refusing to issue, refusing to renew, canceling or declining any contract because of sexual orientation, as defined in the WLAD. (See here for a statement from the Office of Insurance Commissioner)
WSHA’s 2020 New Law Implementation Guide
Please visit WSHA’s 2020 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.
References
2020 Rule Factsheet
2020 HHS Finalized ACA Section 1557 Rule— Nondiscrimination in Health and Health Education Programs or Activities: Delegation of Authority
Bostock v. Clayton County—United States Supreme Court case finding a broader definition of sex discrimination
RCW 49.60—Washington Law Against Discrimination
RCW 48.30.300—Law against insurance entities discriminating
RCW 48.43.0128—Law governing grandfathered insurance plans
HealthAffairs.org Rule Summary
National Health Law Program Summary
WSHA Language Access Resources
Statistical Atlas—Resource for health care entities to use when evaluating languages (other than English) spoken in Washington
