Houston Medical Journal June 2017 - Page 4

Medical Journal - Houston Page 4 June 2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discrimination in Employment Act, and Section 504 of the Rehabilitation Act, which prohibits employment discrimination on the basis of a disability. . . . . . . . . . . . . . . . LEGAL AFFAIRS On May 18, 2016, nearly six full years after the ACA was passed, the Department of Health and Human Services (HHS) published a final rule that was intended to clarify, codify, educate, and set new access to healthcare for individuals with limited English proficiency. To do so, providers must make available qualified interpreters or video remote interpreting that meets certain standards. The final rule further requires that covered entities ensure that communications with individuals with disabilities are as effective as communications with other persons. To do so, providers must offer access to services ACA’s nondiscrimination provision and the shifting tides of healthcare regulation BY MARY M. BEARDEN and ALLISON SHELTON, Brown & Fortunato, P.C. When the Affordable Care Act (ACA) passed in 2010, the federal government included a nondiscrimination provision that is codified in Section 1557 of the law. Section 1557 broadly prohibits discrimination in healthcare on the basis of race, color, national origin, sex, age, or disability. These categories of discrimination are based upon prohibitions found under other federal laws, such as Title VI (the Civil Rights Act), Title IX (the Sex Discrimination Act in the Education Amendments of 1972), the Age standards for compliance with Section 1557. The final rule has placed significant and burdensome requirements on entities covered by the law, including healthcare providers that accept Medicare or Medicaid. or activities that are provided through electronic and information technology, interpretation services, auxiliary aids, and services for persons with impaired sensory, manual, or speaking skills. Under the final rule, covered entities must take reasonable steps to provide meaningful Covered entities must adopt grievance policies and post notices regarding the entity’s nondiscrimination policy, grievance process, free auxiliary aids, and interpretation services. Furthermore, the notices must include taglines in the top 15 non-English languages spoken in the state that explain the availability of language assistance. Such notices must be included in an entity’s “significant publications,” which may include a provider’s Notice of Privacy Practices and consent forms. Finally, entities with 15 or more employees must identify a compliance coordinator who enforces the policies and addresses grievances. One of the most controversial aspects of the final rule was the rule’s definition of “sex discrimination.” Specifically, the rule defined sex discrimination to include discrimination based on “gender identity” or “termination of pregnancy.” This definition caused private healthcare providers and eight states to file suit against HHS in the U.S. District Court for the Northern District of Texas and to seek a preliminary injunction against enforcement of the final rule. In Franciscan Alliance, Inc. v. Burwell, the plaintiffs claimed that the final rule would require insurers and healthcare providers to cover and provide abortions and gender transition services regardless of the providers’ religious beliefs or medical judgment. Further, the plaintiffs argued that HHS exceeded its authority in adopting the final rule. Judge Reed O’Connor agreed, stating that HHS’s interpretation of sex discrimination “violates the Administrative Procedure Act . . . by contradicting existing Please see LEGAL AFFAIRS page 12