§1557 Final Rule as it Applies to Persons with Disabilities

Back in 2015, I blogged on the ACA proposed final regulations as it affected non-discrimination against persons with disabilities, here (this blog entry is still worthwhile reading). It turns out that the rule was finalized in 2016. Somehow, I didn’t blog on that. Now, HHS has issued a revised final rule for §1557. I thought it would be useful to look at it with respect to how it deals with nondiscrimination against persons with disabilities as usual, the blog entry is divided in the categories, and they are: history of the rule; highlights of the rule with respect to persons with disabilities; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

History of the Rule

On August 1, 2013, the HHS Office for Civil Rights (OCR) published a Request for Information in the Federal Register , 78 FR 46558,^[1] followed by issuance of a notice of proposed rulemaking (NPRM) on September 8, 2015 (2015 NPRM), 80 FR 54171.^[2] OCR finalized the first section 1557 regulation on May 18, 2016 (2016 Rule), 81 FR 31375. On June 14, 2019, the Department published a new section 1557 NPRM (2019 NPRM), 84 FR 27846, proposing to rescind and replace large portions of the 2016 Rule.^[3] On June 12, 2020, OCR publicly posted its second section 1557 final rule (2020 Rule), which was published in the Federal Register on June 19, 2020, 85 FR 37160. The 2020 Rule remains in effect, save for the parts enjoined or set aside by courts, until the effective date of this final rule. In the meantime, entities that are subject to the 2020 Rule must continue to comply with the parts of the 2020 Rule that remain in effect.

On January 5, 2022, the Department proposed to amend CMS regulations such that Exchanges, issuers, and agents and brokers would be prohibited from discriminating against consumers based on their sexual orientation or gender identity in the HHS Notice of Benefit and Payment Parameters for 2023 NPRM, 87 FR 584 (January 5, 2022). CMS did not finalize the amendments in the Notice of Benefit and Payment Parameters for the 2023 final rule, 87 FR 27208 (May 6, 2022); instead, CMS proposed to make the amendments to its regulations in forthcoming Departmental rulemaking.

On July 25, 2022, OCR publicly posted the section 1557 NPRM associated with this rulemaking (2022 NPRM or Proposed Rule), which was published in the Federal Register on August 4, 2022, 87 FR 47824. OCR invited comment on the Proposed Rule by all interested parties. The comment period ended on October 3, 2022. In total we received 85,280 comments on the Proposed Rule.^[4] Comments came from a wide variety of stakeholders, including but not limited to: civil rights/advocacy groups, including language access organizations, disability rights organizations, women’s advocacy organizations, and organizations serving lesbian, gay, bisexual, transgender, queer, or intersex (LGBTQI+) individuals; health care providers; consumer groups; religious organizations; academic and research institutions; reproductive health organizations; health plan organizations; health insurance issuers; State and local agencies; and tribal entities. Of the total comments, 79,126 were identified as being submitted by individuals. Of the 85,280 comments received, 70,337 (80 percent) were form letter copies associated with 30 distinct form letter campaigns.

 

 

II

Highlights of the Rule with Respect to Persons with Disabilities

 

1. Regulations go into effect July 5, 2024 with a couple of exceptions.
2. The regulations apply to: 1) every health program or activity, any part of which receive federal financial assistance, directly or indirectly, from the department; 2) every health program or activity administered by the department; and 3) every health program or activity administered by a ACA title I entity.
3. Disability is defined in the same way as the ADA and the Rehabilitation Act.
4. Health program or activity means: (1) Any project, enterprise, venture, or undertaking to: (i) Provide or administer health-related services, health insurance coverage, or other health-related coverage; (ii) Provide assistance to persons in obtaining health-related services, health insurance coverage, or other health-related coverage; (iii) Provide clinical, pharmaceutical, or medical care; (iv) Engage in health or clinical research; or (v) Provide health education for health care professionals or others.
5. Regulations apply to all of the operations of any entity principally engaged in the provision or administration of any health projects, enterprises, ventures, or undertakings described in paragraph four immediately above, including, but not limited to, a State or local health agency, hospital, health clinic, health insurance issuer, physician’s practice, pharmacy, community-based health care provider, nursing facility, residential or community-based treatment facility, or other similar entity or combination thereof. A health program or activity also includes all of the operations of a State Medicaid program, Children’s Health Insurance Program, and Basic Health Program.

5. Regulations define who is a qualified interpreter for an individual with a disability with respect to either utilizing video remote interpreting services or on site appearance.
6. Any covered entity that employs 15 or more individuals has to designate and authorize a §1557 coordinator.
7. A covered entity must implement written effective communication procedures in its health programs and activities describing the covered entity’s process for ensuring effective communication for individuals with disabilities when required under § 92.202. At a minimum, a covered entity’s effective communication procedures must include current contact information for the Section 1557 Coordinator (if applicable); how an employee obtains the services of qualified interpreters the covered entity uses to communicate with individuals with disabilities, including the names of any qualified interpreter staff members; and how to access appropriate auxiliary aids and services.
8. A covered entity must implement written procedures in its health programs and activities describing the covered entity’s process for making reasonable modifications to its policies, practices, or procedures when necessary to avoid discrimination on the basis of disability as required under § 92.205. At a minimum, the reasonable modification procedures must include current contact information for the covered entity’s Section 1557 Coordinator (if applicable); a description of the covered entity’s process for responding to requests from individuals with disabilities for changes, exceptions, or adjustments to a rule, policy, practice, or service of the covered entity; and a process for determining whether making the modification would fundamentally alter the nature of the health program or activity, including identifying an alternative modification that does not result in a fundamental alteration to ensure the individual with a disability receives the benefits or services in question.
9. Covered entity cannot rely on an adult instead of a qualified interpreter to interpret or facilitate communication except in certain limited circumstances, including: (1) Require an individual with limited English proficiency to provide their own interpreter, or to pay the cost of their own interpreter; (2) Rely on an adult, not qualified as an interpreter, to interpret or facilitate communication, except: (i) As a temporary measure, while finding a qualified interpreter in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for the individual with limited English proficiency immediately available and the qualified interpreter that arrives confirms or supplements the initial communications with an initial adult interpreter; or (ii) Where the individual with limited English proficiency specifically requests, in private with a qualified interpreter present and without an accompanying adult present, that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, the request and agreement by the accompanying adult is documented, and reliance on that adult for such assistance is appropriate under the circumstances; (3) Rely on a minor child to interpret or facilitate communication, except as a temporary measure while finding a qualified interpreter in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no qualified interpreter for the individual with limited English proficiency immediately available and the qualified interpreter that arrives confirms or supplements the initial communications with the minor child; or (4) Rely on staff other than qualified interpreters, qualified translators, or qualified bilingual/multilingual staff to communicate with individuals with limited English proficiency.
10. Video remote interpreting services. A covered entity that provides a qualified interpreter for an individual with limited English proficiency through video remote interpreting services in the covered entity’s health programs and activities must ensure the modality allows for meaningful access and must provide: (1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication; (2) A sharply delineated image that is large enough to display the interpreter’s face and the participating person’s face regardless of the person’s body position; (3) A clear, audible transmission of voices; and (4) Adequate training to users of the technology and other involved persons so that they may quickly and efficiently set up and operate the video remote interpreting.
11. The title II effective communication rules are the ones that apply (primary communication).
12. 2010 architectural standards are the applicable standards.
13. Should somehow an undue financial, administrative burden, or fundamental alteration in the nature of the health program or activity exists, action must be taken up until that point in order to ensure to the maximum extent possible that individuals with disabilities receive the benefits or services of the health program or activity provided by the covered entity.
14. A recipient or state exchange must comply with the requirements of §504 as interpreted consistently with title II of the ADA (I take that to mean that there have to be compliance with the DOJ title II regulations on website accessibility and mobile app accessibility).
15. Policies, practices, or procedures have to be modified for a person with a disability unless a fundamental alteration exists.
16. Health insurance coverage cannot be administered in a way that discriminates on the basis of disability. That means it cannot deny, cancel, limit, refuse to issue or renew health insurance coverage or other health related coverage, or deny or limit coverage of the claim, or impose additional cost sharing or other limitations or restrictions on coverage, on the basis of disability.
17. Legitimate denials of coverage are okay if a nondiscriminatory reason for doing that exists. Those denials cannot be based upon unlawful animus or bias, or constitute a pretext for discrimination.
18. Cannot discriminate against a person who associates with a person with a disability.

 

III

Thoughts/Takeaways

 

1. The effective communication rules that apply are the title II rules (primary consideration).
2. There are very specific provisions with respect to entities needing to set up systems to ensure that they communicate effectively with people with disabilities. One wonders if that won’t get a bit bureaucratic and make flexibility difficult. Whenever dealing with persons with disabilities, flexibility is everything. So, when coming up with the written procedures, be sure to meet the regulatory requirement but also maintain flexibility.
3. Requires a §1557 coordinator. I don’t see why that person couldn’t be the same as the §504 coordinator. For that matter, the ADA coordinator as well. Keep in mind, the ADA has very different statutory provisions, regulations, and guidances depending upon what title is involved.
4. The Deaf community is not a big fan of video remote interpreting services as VRI frequently has problems. The regulation builds in requirements to help ensure that those problems do not occur, but they often do in practice.
5. The DOJ title II regulations on website accessibility and mobile app accessibility are to my mind, incorporated into this regulation.
6. Legitimate reasons for denying coverage are okay but not reasons based upon bias or disability.
7. Associational discrimination is out.
8. When it comes to effective communication, especially in the healthcare setting, this blog entry is a must read.