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Your Comments Needed to Strengthen Anti-Discrimination Rules in Health Programs

Your Comments Needed to Strengthen Anti-Discrimination Rules in Health Programs

The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has issued proposed regulations to implement Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination on the basis of race, color, national origin (including immigration status and language), sex (including sex stereotyping and gender identity), age, or disability in health programs. These protections apply to consumers in all federally funded state health programs, including Covered California and Medi-Cal.

The proposed regulations are a good first step, but the rule could be made stronger to better protect people at risk of discrimination in health coverage or care, including communities of color, Limited English Proficient, women, LGBTQ populations, and persons with disabilities.
 
Public comments are needed to strengthen these proposed regulations. While comments submitted by organizations are important, it also is very important for individual members of the public to submit personalized comments.
 
Please submit your comments online no later than 2 pm PT on November 9, 2015. Click on the blue "Comment Now!" button on the top right of the page. You can either type in your comments or upload a file from your computer.
 
You can use these sample messages to guide your comments. The National Health Law Program (NHeLP) also has a great sample letter you can use.

Submit your comments today!

  • Language Access: We support the definition of “qualified interpreter,” and we suggest including a definition of a “qualified translator.” Further, we strongly support including specific thresholds for translating written documents to ensure minimum standards exist that would directly aid evaluating compliance and enforcement. In defining thresholds, HHS should adopt the HHS LEP Guidance which requires that vital document be translated for each language group that makes up 5% or 1,000 persons, whichever is less, of the population of persons eligible to be served or likely to be affected by the program or recipient in its service area. This percentage and numeric threshold is already employed in other federal agency policy guidance, with some programs and agencies employing even lower thresholds. We also support requirements regarding taglines but recommend that covered entities be required to include taglines in the top 15 languages in their state/service area rather than the proposal to only include the top 15 languages nationally. In many states, the top 15 languages nationally will not be useful for informing local limited English proficient communities. For example, although Cambodian and Hmong are among the top languages spoken by California’s Medi-Cal population, those languages are not currently included in the list of the top 15 languages spoken nationally. Finally, we oppose continuing the exclusion of Medicare Part B providers from coverage under Section 1557.
     
  • Sex Discrimination: We support the rule’s new prohibitions on discrimination on the basis of sex and the definition included. We support the rule’s inclusion of sex stereotyping and gender identity in the definition of sex discrimination, and we strongly urge HHS to include sexual orientation as well. Women's access to reproductive health care is a matter of sex equality, and health care refusals (also known as conscience clauses) involving reproductive health care and services constitute impermissible sex discrimination. We also strongly oppose any new exemption that would permit discrimination based on religious views against any person, especially women, people with disabilities, or LGBT people.
     
  • Disability Issues: We strongly support the provisions requiring effective communication for individuals with disabilities and accessibility standards, including the requirements for websites and electronic and information technology. However, we are concerned about waiting 18 months past the publication of the final rule for compliance with accessibility standards when the Americans with Disabilities Act has required such accessibility for over 20 years. We also recommend the rule require basic accessibility for medical equipment now while recognizing more specific standards from The Access Board will be provided at a later date.
     
  • Data Collection: One tenet of ensuring compliance with nondiscrimination requirements is to ensure strong data collection. Having accurate data ensures that covered entities have the needed information to determine how to provide language services and auxiliary aids and services. We urge HHS to add specific demographic data collection requirements to the rule for all covered entities. Covered entities should be required to collect data on race, ethnicity, language, sex, gender, gender identity, sexual orientation, disability status, and age. Further, covered entities should be required to assess (and update their assessments annually) of the population they serve and are eligible to be served so that they can appropriately plan how to meet the needs of their clients/patients. HHS should provide guidelines as to how to conduct an assessment and what data may be readily available to covered entities.
     
  • Benefit Design and Marketing: We also strongly support nondiscrimination requirements to benefit design and marketing practices. We recommend HHS define “benefit design” to include, at a minimum, cost-sharing, formulary tiers, provider networks, prior authorization and other utilization management. As an example, health plans should not be permitted to put all the medications required to treat a condition or ailment on the highest formulary tier. If they do, they should be subject to Section 1557’s enforcement provisions.
     
  • Enforcement: We strongly support Section 1557’s inclusion of both administrative and judicial remedies for discrimination. In particular, we recommend that the rule better reflect the statutory language by clarifying and strengthening the judicial enforcement opportunities and by directly recognizing that Section 1557 permits judicial claims for disparate impact discrimination. Further, as the statutory language of Section 1557 authorized the Secretary of HHS to promulgate regulations, we recommend the proposed rule apply to all federally funded, supported and conducted activities and not just those of HHS.

Your comments are needed by November 9th! Please submit yours today!

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