May 6, 2024
Over the past two weeks, the U.S. Department of Health and Human Services (HHS) has issued multiple final rules regarding nondiscrimination.
The first final rule, titled "Nondiscrimination in Health Programs and Activities", was filed on April 26, 2024, and prohibits discrimination based on race, color, national origin, sex, age, and disability in health programs and activities covered under Section 1557 of the Affordable Care Act (ACA). The final rule applies to health programs and activities that receive HHS funding, health programs and activities administered by HHS, and the health insurance marketplace. The final rule is scheduled for publication in the Federal Register on May 6, 2024, and will take effect 60 days after its publication.
Provisions in this rule, as shared by the National Council for Mental Wellbeing, include:
- Requirement for covered entities, inclusive of healthcare providers, to proactively let people know that language-assistance and accessibility services are available at no cost to patients.
- Requirement for healthcare facilities that were constructed or altered for the use of, or by, a recipient or State-based Marketplace to comply with the 2010 Americans with Disabilities Act (ADA) Standards for Accessible Design, if the construction or alteration began on or after July 18, 2016, and on or before January 18, 2018, as defined in the ADA Title II regulations.
- Clarification that covered health programs and activities offered via telehealth must also be accessible to individuals with limited English proficiency, and individuals with disabilities. Additionally, the final rule clarifies that nondiscrimination in health programs and activities apply to the use of artificial intelligence.
- A change in interpretation on treating Medicare Part B as federal financial assistance - extended for the purpose of coverage under Title VI of the Civil Rights Act, Section 504 of the Rehabilitation Act, and other federal civil rights statutes. Given the time that may be needed to comply with this change in position, HHS is providing a one-year delayed applicability date of May 6, 2025.
Click here to access the final rule itself, and click here to access HHS' Section 1557 webpage, or here to access HHS' Section 1557 FAQ webpage, for more information.
The second relevant final rule, titled "Health and Human Services Grant Regulation," was published today, May 3, 2024. This rule clarifies and reaffirms nondiscrimination on the basis of sex in HHS-funded programs and services, inclusive of substance use and community health services. This rule goes into effect 30 days from today, the date of its publication.
Click here to access the final rule itself, and click here to access an HHS press release on this final rule.
The last recently issued relevant final rule, titled "Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance," was filed on May 1, 2024, is scheduled to be published in the Federal Register on May 9, 2024, and will go into effect 60 days after that date.
This rule aims to bolster protections and update regulations for Section 504 of the Rehabilitation Act, which prohibits discrimination on the basis of disability in programs and activities that receive funding from HHS. As shared by the National Council for Mental Wellbeing, provisions in this final rule include:
- Prohibiting recipients of federal financial assistance from directly and indirectly using measures, assessments, and tools that discount the value of life extension on the basis of disability that would be used to limit access or deny aids, benefits, or services. HHS does not specify the use of specific value assessments.
- Requirements that adopt the 2017 Accessible Medical and Diagnostic Equipment (MDE) Standards, published by the U.S. Architectural and Transportation Barriers Compliance Board, wherein all MDE that recipients purchase, lease (including renewals of leases), or otherwise acquire after July 8, 2024 must meet these standards. Additionally, recipients who use examination tables or weight scales in their programs/activities are required to have at least one accessible exam or table weight scale by July 8, 2026.
- New sections to 45 CFR Part 84 to ensure parity and consistency with amendments made to Section 504 and the ADA, as well as Supreme Court rulings and existing case law: This includes permitting use of trained service animals and use of manually powered mobility devices for individuals with disabilities; ensuring effective methods of communication for individuals with hearing, vision, and speech impairments; and permitting refusal to include individuals with disabilities from participating in and benefiting from programs if such individuals present direct threats as defined by the final rule.
- Notably, HHS provides exceptions to these requirements for recipients of federal financial assistance if the results of such action would result in a fundamental alteration in the nature of any programs or if such action would require participants to incur undue financial and administrative burdens. Nonetheless, the final rule requires recipients of federal financial assistance to take "any other action" that would not result in an undue financial or administrative burden, but would ensure that individuals with disabilities receive the benefits and services under the program to the maximum extent possible.
Click here to access the final rule itself, and click here to access an HHS fact sheet on the final rule for more information.
