HHS proposes new health care discrimination regulations

Health Center sign in front of building with trees
Comment Period for Health Care Discrimination Regulations

Nearly five years after the Affordable Care Act’s passage, the Obama Administration released long-awaited health care discrimination regulations September 8, providing the public a 60-day period to comment on the proposal.

Although the Department of Health and Human Services has been accepting discrimination complaints brought under the ACA since 2010, the regulations seek to streamline and expand on existing protections for people with disabilities under the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and various Department of Justice regulations.

“This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system,” HHS Secretary Sylvia M. Burwell said in a news release. “This is another example of this Administration’s commitment to giving every American access to the health care they deserve.”

The regulations specify that all health care providers are subject to the “effective communication” requirements of Title II of the ADA, which governs public entities, rather than the weaker requirements of Title III, which governs certain businesses and nonprofits.

Under Title II, entities must give primary consideration to the particular aid or service requested by the person with the communication disability. Contrarily, Title III merely requires that they consider the aid or services’ effectiveness, the nature of what’s being communicated and the method of what’s being communicated, according to the DOJ’s 2010 regulations.

In regard to health care facilities and structures, the regulations also incorporate the 2010 ADA Standards for Accessible Design, as well as provide other heightened requirements. Providers must also provide effective technology in line with the most recent regulations from the Access Board and other applicable agencies.

Further, as required under the ADA, the rules make clear that health care providers must “make reasonable modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability.”

The proposal also includes significant new protections for people with limited English proficiency and clarify that the ACA’s gender discrimination provision encompasses discrimination against transgender people, including in the provision of transition-related treatments.

“Discrimination takes many forms and can occur at any step in the health care system, from obtaining insurance coverage to receiving proper diagnosis and treatment,” Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights, said in a news release.”  This discrimination has serious adverse impacts on the lives of underserved populations, causing them to pay more for health care and to risk receiving improper diagnoses and less effective treatments.

“We commend HHS for taking the important step of issuing a proposed rule and urge the administration to move promptly after the end of the comment period to finalize the regulations so as to ensure effective implementation of this crucial new civil rights protection.”

The HHS will accept public comments on the proposed regulations until November 9.