On August 1, 2013, the Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“HHS”) published a Request for Information (“RFI”) regarding the nondiscrimination provisions set forth in Section 1557 of the Affordable Care Act (“ACA”). This Section prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. Consistent with its authority provided within Section 1557(c) of the ACA, HHS intends to promulgate regulations to implement these nondiscrimination requirements.
In an effort to inform HHS’ rulemaking, and while recognizing the significant issues implicated, the RFI “seeks information on a variety of issues to better understand individuals’ experiences with discrimination in health programs or activities and covered entities’ experiences in complying with Federal civil rights laws.”
Specifically, HHS requested the following information:
Understanding the current landscape
- Stakeholders’ descriptions of experiences with, and examples of, discrimination in health programs and activities, with respect to discrimination in health programs and activities on the basis of (a) race, color, or national origin discrimination; (b) sex discrimination (including discrimination on the basis of gender identity, sex stereotyping, or pregnancy); (c) disability discrimination; (d) age discrimination; or (e) discrimination on one or more bases, where those bases intersect;
- Examples of the types of programs and activities that should be considered health programs or activities under Section 1557 and reasons for inclusion;
- Information reflecting the impacts of discrimination, such as studies or other evidence documents that demonstrate the costs and consequences of discrimination and/or the benefits of equal access to health programs and activities for various populations;
Ensuring Access to Health Programs and Activities
- Information related to ensuring access to health programs and activities for individuals with limited English proficiency;
- Unique issues, burdens or barriers, recommended exceptions related to sex discrimination in health programs and activities, and implications for individuals and covered entities that serve individuals of only one sex;
- Information related to the use of information technology in health programs and activities, including potential benefits and barriers, innovative methods, and recommended standards;
Compliance and Enforcement Approaches
- Comments regarding the effectiveness of existing enforcement methods in addressing discrimination;
- Recommendations on how to strengthen the existing enforcement methods;
- Feedback regarding the self-evaluations covered entities are currently required to complete under the implementing regulations of Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, and the Age Discrimination Act of 1975; and
- Lessons learned from relevant complaint and grievance procedures in existence at hospitals, clinics and other covered entities.
HHS also requested comments on any other issues important to the implementation of ACA’s nondiscrimination provision that HHS should consider, but did not specifically request in its RFI.
Comments must be received no later than 5 p.m. on September 30, 2013 to be considered. All comments received before this time will be available for public inspection. Stakeholders should stay abreast of future developments, including the release of HHS’ nondiscrimination regulations to ensure compliance.