[Federal Register Volume 78, Number 148 (Thursday, August 1, 2013)]
[Proposed Rules]
[Pages 46558-46560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18707]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Office of the Secretary
45 CFR Subtitle A
RIN 0945-ZA01
Request for Information Regarding Nondiscrimination in Certain
Health Programs or Activities
AGENCY: Office for Civil Rights (OCR), HHS.
ACTION: Request for Information.
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SUMMARY: Section 1557 of the Patient Protection and Affordable Care Act
of 2010 (Affordable Care Act) (42 U.S.C. 18116) prohibits
discrimination on the basis of race, color, national origin, sex, age,
or disability in certain health programs and activities. Section
1557(c) of the Affordable Care Act authorizes the Secretary of the
Department of Health and Human Services (Department) to promulgate
regulations to implement the nondiscrimination requirements in Section
1557. This notice is a request for information (RFI) to inform the
Department's rulemaking for Section 1557. This 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.
DATES: Comments must be received at one of the addresses provided
below, no later than 5p.m. on September 30, 2013.
ADDRESSES: Written comments may be submitted through any of the methods
specified below. Please do not submit duplicate comments.
Federal eRulemaking Portal: You may submit electronic
comments at http://www.regulations.gov. Follow the instructions for
submitting electronic comments. Attachments should be in Microsoft
Word, WordPerfect, or Excel; however, we prefer Microsoft Word.
Regular, Express, or Overnight Mail: You may mail written
comments (one original and two copies) to the following address only:
U.S. Department of Health and Human Services, Office for Civil Rights,
Attention: 1557 RFI (RIN 0945-AA02), Hubert H. Humphrey Building, Room
509F, 200 Independence Avenue SW., Washington, DC 20201. Mailed
comments may be subject to delivery delays due to security procedures.
Please allow sufficient time for mailed comments to be timely received
in the event of delivery delays.
Hand Delivery or Courier: If you prefer, you may deliver
(by hand or courier) your written comments (one original and two
copies) to the following address only: Office for Civil Rights,
Attention: 1557 RFI (RIN 0945-AA02), Hubert H. Humphrey Building, Room
509F, 200 Independence Avenue SW., Washington, DC 20201. (Because
access to the interior of the Hubert H. Humphrey Building is not
readily available to persons without federal government identification,
commenters are encouraged to leave their comments in the mail drop
slots located in the main lobby of the building.)
Inspection of Public Comments: All comments received
before the close of the comment period will be available for public
inspection, including any personally identifiable or confidential
business information that is included in a comment. We will post all
comments received before the close of the comment period at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Carole Brown, 202-619-0805.
SUPPLEMENTARY INFORMATION:
[[Page 46559]]
I. Background
Section 1557 is consistent with and promotes several of the
Administration's and Department's key initiatives that promote health
and equal access to health care. In 2011, the Department adopted the
Health and Human Services Action Plan to Reduce Racial and Ethnic
Health Disparities (HHS Disparities Action Plan). With the HHS
Disparities Action Plan, the Department commits to continuously
assessing the impact of all policies and programs on health disparities
and promoting integrated approaches, evidence-based programs and best
practices to reduce these disparities. The HHS Action Plan builds on
the strong foundation of the Affordable Care Act and is aligned with
programs and initiatives such as Healthy People 2020, the First Lady's
Let's Move initiative and the President's National HIV/AIDS Strategy.
In addition, Exchanges or Health Insurance Marketplaces established
under the Affordable Care Act must also comply with all applicable
Federal laws prohibiting discrimination.
Section 1557 provides that an individual shall not be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination on the grounds prohibited under Title VI of the Civil
Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq. (race, color,
national origin), Title IX of the Education Amendments of 1972 (Title
IX), 20 U.S.C. 1681 et seq. (sex), the Age Discrimination Act of 1975
(Age Act), 42 U.S.C. 6101 et seq. (age), or Section 504 of the
Rehabilitation Act of 1973 (Section 504), 29 U.S.C. 794 (disability),
under any health program or activity, any part of which is receiving
Federal financial assistance, or under any program or activity that is
administered by an Executive Agency or any entity established under
Title I of the Affordable Care Act or its amendments. Section 1557
states that the ``enforcement mechanisms provided for and available
under'' Title VI, Title IX, Section 504, or the Age Act shall apply for
purposes of violations of Section 1557. The Department is responsible
for developing regulations to implement Section 1557.
In developing a regulation to implement Section 1557, the
Department recognizes that Section 1557 builds on a landscape of
existing civil rights laws. For example, the prohibitions against
discrimination on the grounds of race, color, national origin, age, and
disability in Title VI, the Age Act, and Section 504, respectively,
apply to all programs and activities covered by those statutes,
including those related to health; however, the prohibition of sex
discrimination in Title IX applies only to education programs and
activities of covered entities. Section 1557 is the first Federal civil
rights statute that prohibits sex discrimination in health programs and
activities of covered entities. Section 1557 also applies to entities
created under Title I of the Affordable Care Act, such as the Health
Insurance Marketplaces.
Additionally, Section 1557 is the first broad based Federal civil
rights statute incorporating the grounds prohibited by four distinct
civil rights statutes. Although Title VI, Title IX, the Age Act, and
Section 504 have similarities in their purpose, structure,
requirements, and enforcement mechanisms, they also have notable
differences.
Moreover, almost 50 years have passed since Title VI was enacted
and roughly 40 years have passed since Title IX, Section 504, and the
Age Act were enacted. Since the enactment of these civil rights laws,
the demographics of the United States have increasingly diversified,
major advances in electronic and information technology have occurred,
and the health care landscape has changed, particularly with the
enactment of the Affordable Care Act.
Recognizing the significant issues implicated by the development of
a regulation to implement Section 1557, the Department is requesting
information through this notice from stakeholders on a range of issues
to better inform our rulemaking. The Department welcomes comments from
all interested stakeholders, including individuals potentially
protected from discrimination under Section 1557, organizations serving
or representing the interests of such individuals, the legal community,
State, Tribal, and local health agencies, health care providers, health
insurers, and other health programs.
II. Solicitation of Comments
The Department is requesting information regarding the following
issues. In responding, please indicate in your response the
corresponding question number and provide the basis or reasoning for
your answers with as much specificity and detail as possible, as well
as any supporting documentation, including research or analyses, to
ensure we have the most helpful information for our rulemaking.
Understanding the Current Landscape
1. The Department is interested in experiences with, and examples
of, discrimination in health programs and activities. Please describe
experiences that you have had, or examples of which you are aware, with
respect to the following types of discrimination in health programs and
activities: (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.
2. There are different types of health programs and activities.
These include health insurance coverage, medical care in a physician's
office or hospital, or home health care, for example. What are examples
of the types of programs and activities that should be considered
health programs or activities under Section 1557 and why?
3. What are the impacts of discrimination? What studies or other
evidence documents the costs of discrimination and/or the benefits of
equal access to health programs and activities for various populations?
For example, what information is available regarding possible
consequences of unequal access to health programs and services, such as
delays in diagnosis or treatment, or receipt of an incorrect diagnosis
or treatment? We are particularly interested in information relevant to
areas in which Section 1557 confers new jurisdiction.
Ensuring Access to Health Programs and Activities
4. In the interest of ensuring access to health programs and
activities for individuals with limited English proficiency (LEP):
(a) What are examples of recommended or best practice standards for
the following topics: (1) Translation services, including thresholds
for the translation of documents into non-English languages and the
determination of the service area relevant for the application of the
thresholds; (2) oral interpretation services, including in-person and
telephonic communications, as well as interpretation services provided
via telemedicine or telehealth communications; and (3) competence
(including certification and skill levels) of oral interpretation and
written translation providers and bilingual staff?
(b) What are examples of effective and cost-efficient practices for
providing language assistance services, including translation, oral
interpretation, and taglines? What cost-benefit data are available on
providing language assistance services?
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(c) What are the experiences of individuals seeking access to, or
participating in, health programs and activities who have LEP,
especially persons who speak less common non-English languages,
including languages spoken or understood by American Indians or Alaska
Natives?
(d) What are the experiences of covered entities in providing
language assistance services with respect to: (1) Costs of services,
(2) cost management, budgeting and planning, (3) current state of
language assistance services technology, (4) providing services for
individuals who speak less common non-English languages, and (5)
barriers covered entities may face based on their types or sizes?
(e) What experiences have you had developing a language access
plan? What are the benefits or burdens of developing such a plan?
(f) What documents used in health programs and activities are
particularly important to provide in the primary language of an
individual with LEP and why? What factors should we consider in
determining whether a document should be translated? Are there common
health care forms or health-related documents that lend themselves to
shared translations?
5. Title IX, which is referenced in Section 1557, prohibits sex
discrimination in federally assisted education programs and activities,
with certain exceptions. Section 1557 prohibits sex discrimination in
health programs and activities of covered entities. What unique issues,
burdens, or barriers for individuals or covered entities should we
consider and address in developing a regulation that applies a
prohibition of sex discrimination in the context of health programs and
activities? What exceptions, if any, should apply in the context of sex
discrimination in health programs and activities? What are the
implications and considerations for individuals and covered entities
with respect to health programs and activities that serve individuals
of only one sex? What other issues should be considered in this area?
6. The Department has been engaged in an unprecedented effort to
expand access to information technology to improve health care and
health coverage. As we consider Section 1557's requirement for
nondiscrimination in health programs and activities, what are the
benefits and barriers encountered by people with disabilities in
accessing electronic and information technology in health programs and
activities? What are examples of innovative or effective and efficient
methods of making electronic and information technology accessible?
What specific standards, if any, should the Department consider
applying as it considers access to electronic and information
technology in these programs? What, if any, burden or barriers would be
encountered by covered entities in implementing accessible electronic
and information technology in areas such as web-based health coverage
applications, electronic health records, pharmacy kiosks, and others?
If specific accessibility standards were to be applied, should there be
a phased-in implementation schedule, and if so, please describe it.
Compliance and Enforcement Approaches
7. Section 1557 incorporates the enforcement mechanisms of Title
VI, Title IX, Section 504 and the Age Act. These civil rights laws may
be enforced in different ways. Title VI, Title IX, and Section 504 have
one set of established administrative procedures for investigation of
entities that receive Federal financial assistance from the Department.
The Age Act has a separate administrative procedure that is similar,
but requires mediation before an investigation. There is also a
separate administrative procedure under Section 504 that applies to
programs conducted by the Department. Under all these laws, parties
also may file private litigation in Federal court, subject to some
restrictions.
(a) How effective have these different processes been in addressing
discrimination? What are ways in which we could strengthen these
enforcement processes?
(b) The regulations that implement Section 504, Title IX, and the
Age Act also require that covered entities conduct a self-evaluation of
their compliance with the regulation. What experience, if any, do you
have with self-evaluations? What are the benefits and burdens of
conducting them?
(c) What lessons or experiences may be gleaned from complaint and
grievance procedures already in place at many hospitals, clinics, and
other covered entities?
8. Are there any other issues important to the implementation of
Section 1557 that we should consider? Please be as specific as
possible.
III. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble.
Dated: June 5, 2013.
Leon Rodriguez,
Director, Office for Civil Rights.
[FR Doc. 2013-18707 Filed 7-31-13; 8:45 am]
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