I’ve worked in Washington DC for over 20 years and I still have a hard time following all that happens. So how does someone who doesn’t live and breathe DC happenings keep up, especially if they are limited English proficient (LEP)? How do people find out about changes in federal law that may impact them?
If no one knows the protections exist, what good is it? Should it be the responsibility of health care providers to let patients know about patients’ new rights or is it the responsibility of patients to figure it out?
The Affordable Care Act (ACA) extended access and quality of care for millions across the U.S. The law spans over 900 pages of legislative language. Some people know the ACA includes a strong nondiscrimination provision (Section 1557) that prevents discrimination based on race, ethnicity, language, disability, sex and age.
But very few understand what the provision protects. If no one knows the protections exist, what good is it? Should it be the responsibility of health care providers to let patients know about patients’ new rights or is it the responsibility of patients to figure it out?
In 2016 regulations implementing the ACA’s nondiscrimination provision Section 1557, the Department of Health and Human Services (HHS) balanced competing interests—how patients would learn about their rights versus the costs and resources for health plans and providers to tell them. HHS decided the responsibility should be with health plans and providers.
To some degree, it’s about economies of scale—it’s certainly easier for a hospital to post a nondiscrimination notice for all to see than for every patient of the hospital have to somehow learn they are protected. Further, providers shouldn’t get a free pass to potentially discriminate because no one knows the law prohibits it.
Regrettably, the Trump Administration wants to shift the burden to patients and their families. In 2016, HHS required most insurers and health care providers to post notices in public locations, in significant mailings, and on websites. These notices told individuals about their right to receive health care services without discrimination.
HHS required these notices to address seven issues:
- the covered entity does not discriminate;
- the covered entity provides auxiliary aids and services for people with disabilities free of charge and in a timely manner;
- the covered entity provides language assistance services for limited English proficient individuals free of charge and in a timely manner;
- how to obtain the auxiliary aids and services and language services;
- identification of and contact information for an employee designated to ensure the entity’s compliance with § 1557;
- the availability of a grievance procedure and how to file a grievance; and
- how to file a discrimination complaint with HHS’ Office for Civil Rights.
Unfortunately, the Trump Administration eliminated the notice requirements. They did this even though they recognized that “an unknown number of persons are likely not aware of their right to file complaints with the HHS [Office for Civil Rights] and some unknown subset of this population may suffer remediable grievances, but will not complain to OCR absent notices informing them of the process.”
The Trump Administration also eliminated requirements for “taglines” on these notices and websites. A tagline is a short statement in a non-English language to help limited English proficient individuals know how to request an interpreter or get help understanding a written English notice.
The 2016 regulations required taglines in the top 15 languages in a state to be included in significant documents. While some confusion arose about what was a “significant” document, the Trump Administration chose to eliminate the tagline requirement completely rather than clarify what documents needed taglines or reduce the number of times taglines would be sent.
Despite the Trump Administration’s changes to the regulations, Section 1557 is still the law. And the Administration can’t just ignore it. Recent lawsuits may prevent or delay the changes from going into effect (see here, here, here and here).
But without ways to learn about these protections from discrimination, many individuals may not know that discrimination they face in a health care setting is likely against the law. For all the good that came out of ACA and Section 1557, it’s still an uphill battle to make sure people know and understand their rights.
For more information on the final rule, check out NHeLP’s overview—HHS Eliminates or Weakens Regulatory Protections Against Discrimination in Health Care.
And see the rest of our blogs in our series on Section 1557:
- Como se dice “discrimination” en Espanol?
- Trump Administration Rolls Back Important Health Care Protection Roll Back for People with Disabilities and Chronic Health Conditions
- Fighting Fire with Lighter Fluid: Trump Administration Rule Incites Health Care Discrimination and Jeopardizes Reproductive Health
- Health Insurers Should Be Wary of Trump Regulatory Rollback