OCR’s Proposed Sex & Other Discrimination Rules Spell Headaches & New Risks For Health Care Providers, Insurers & Others

November 6, 2015 is the deadline for health care providers, health insurance exchanges, Medicare Advantage plans, Medicaid Advantage plans, health insurers providing coverage in the health insurance marketplaces, their contractors and other concerned parties to comment on a proposed rule on Nondiscrimination in Health Programs and Activities published today by the Department of Health and Human Services (HHS) to implement the federal prohibition against sex discrimination in health programs and activities enacted under Section 1557 of the Patient Protection and Affordable Care Act (ACA) and tightening other nondiscrimination requirements that generally apply to Health Insurance Marketplaces, any health program that HHS itself administers, and any health program or activity, any part of which receives funding from HHS, such as hospitals that accept Medicare patients or doctors who treat Medicaid patients, and health insurance issurers participating in the Health Insurance Marketplaces, Medicare or Medicaid Advantage Plans and other entities covered by the HHS Office of Civil Rights (OCR) civil rights rules (covered entities) and various other programs and activities administered by HHS’ Office of Civil Rights (OCR).

Since OCR already aggressively investigates and enforces federal prohibitions against discrimination based on race, color, national origin, disability, age and sex against covered entities as part of the Obama Administration’s broader civil rights agenda, covered entities can look forward to OCR’s adoption of the proposed rules to add even more teeth and fire to the already aggressive enforcement by OCR of health care providers, insurers and other parties subject to the civil rights laws enforced by OCR. See. e.g., Health Care Employer’s Discrimination Triggers Medicare, EEOC Prosecutions; Genesis Healthcare Disability HHS OCR Discrimination Settlement Reminder To Use Interpreters, Other Needed Accommodations For Disabled; OCR Settlements Show Health Care & Disabled Housing Providers Face Growing Disability Discrimination Risks Given the often multimillion dollar penalties and other heavy sanctions that OCR already has imposed against a long and ever-growing list of state and other health care, child care, elder care, insurance and other entities for violating the discrimination or other civil rights rules administered by OCR, health care and other providers, Medicare and Medicaid Advantage and other insurers, and other covered entities generally will want both to carefully review and comment as appropriate on the proposed rules, as well as review and tighten as advisable their existing practices to reduce the risk of being sanctioned, excluded or both for violation of these nondiscrimination and other civil rights requirements by OCR. In this respect, covered entities will want both to evaluate their risks and responsibilities under the specific rules about Section 1557’s sex discrimination prohibits, as well as changes that more broadly affect the interpretation and enforcement of the nondiscrimination rules enforced by OCR generally.

Sex and Gender Identity Discrimination

Concerning the new prohibition against sex discrimination added by Section 1557 of the ACA, the proposed rule expressly provides that covered entities must treat woman equally with men in the health care they receive generally as well as specifically comments on the obligations of covered insurers with respect to sex discrimination including gender identity. While other provisions of the ACA bar certain types of sex discrimination in insurance, for example by prohibiting women from being charged more than men for coverage, the proposed regulation makes clear that the protections of Section 1557 reach even more broadly to prohibit sex discrimination both in the health coverage patients obtain as well as in the health services they seek from providers.

Not unexpectedly in light of the Supreme Court’s ruling in Obergefell and the Obama Administration’s proactive agenda on the advance of rights for lesbian, bisexual, gay and transsexual (LBGT) individuals, the proposed rule makes clear that OCR construes prohibited sex discrimination under Section 1557 to include discrimination based on gender identity as well as to address various coverage and care practices that OCR views as prohibited sex discrimination of LBGT individuals. In this respect, the proposed rule makes clear HHS’s commitment, as a matter of policy, to preventing discrimination based on sexual orientation by providing, among other things that Individuals may not be subject to discrimination based on gender identity by any covered entities including insurance policies and their issuers. OCR also highlights various policy provisions and other practices by insurers that it views as prohibited sex discrimination against transsexual individuals such as categorical exclusions on coverage of all care related to gender transition.  Similarly, the proposed rule also states that health care providers, insurers and other covered person must treat all individuals consistent with their gender identity, including in access to facilities. Beyond the already proposed safeguards against sex discrimination based on gender identity, OCR also requests comment on how a final rule can incorporate the most robust set of protections  against discrimination that are supported by the courts on an ongoing basis.

Other Nondiscrimination Rule Expansions

Beyond its requirements relating to sex discrimination, the proposed rule also addresses a host of other concerns relating to the civil rights rules more generally. As an initial matter, the proposed rule invites individuals in protected classes to file complaints and pursue other enforcement by confirming that OCR interprets Section 1557 as allowing individuals to seek legal remedies for discrimination under Section 1557. While OCR already has been allowing this in practice, this blessing of the right of individuals to seek legal remedies unquestionably will encourage the filing of more complaints and other private actions.

The proposed rule also would add more teeth to the already aggressive enforcement by OCR of its position that covered entities must accommodate community deficiencies of persons with cognitive, speech, hearing or other disabilities and English proficiency limitations on their ability to communicate on health care matters by establishing more detailed minimum standards for the provision of language services, such as oral interpreters and written translations to persons with limited English proficiency and to provide individuals with hearing or other disabilities affecting their ability to communicate to provide auxiliary aids and services, including alternative formats and sign language interpreters, and the accessibility of programs offered through electronic and information technology.  These proposed requirements are designed to provide more teeth and compliance with OCR’s expectation that covered entities will affirmatively act to offer accommodations needed to ensure the ability of individuals to communicate when the individual’s ability to understand or respond is impaired by disabilities or limited English proficiency.

Also, the proposed regulations specifically addresses various practices by Medicare and Medicaid Advantage plans and other insurers offering coverage in the marketplace that OCR views as discriminatory. For instance, the proposed rule states that insurers participating or offering coverage through any Health Insurance Marketplace cannot engage in any marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability.  This prohibition would extend to all the plans of insurers participating in the Marketplace are covered by the proposed rule.

Beyond the already proposed expansion in the current regulatory expectations, OCR also invites input about additional requirements to broaden the safeguards in the proposed regulations by requesting comment on whether Section 1557 should include an exemption for religious organizations and what the scope of any such exemption should be as well as comment on how a final rule can incorporate the most robust set of protections  against discrimination that are supported by the courts on an ongoing basis.

Unquestionably these and other changes proposed in the proposed regulation likely will impact the practices and risks of virtually all covered entities. The proposed rule is open for public comment through November 6, 2015. Covered entities and other interested persons will want to promptly review the specifics of the proposed regulation in light of OCR’s already existing investigation and enforcement activities and their current or contemplated practices. To the extent appropriate, covered entities will want to ensure that they carefully prepare and submit all revelevant comment or other feedback promptly submitted on or before the November 6, 2015 comment deadline. Whether or not a covered entity elects to comment of the proposed regulations, however, all covered entities also should begin tightening and adapting their existing policies and practices to respond to the positions revealed by the proposed regulations, as OCR’s enforcement activities reflect that OCR will act to enforce many of these expectations even as it pursues adoption of the proposed regulations in final form.

For More Information Or Assistance

If you need assistance reviewing or responding to these or other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, Board Certified in Labor & Employment Law, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 28 years experience advising health industry clients about these and other matters. Her experience includes more than 23 years experience advising and defending hospitals, nursing home, home health, rehabilitation and other health care, housing, insurance and other  clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to discrimination and other charges from OCR, HUD, EEOC, DOJ, private claimants and others.  She also advises and assists a broad range of health industry and other clients to respond to and defend Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR, CMS & other HHS agencies, Department of Labor, IRS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.  The scribe for the American Bar Association (ABA) Joint Committee on Employee Benefits annual agency meeting for several years with OCR.  Ms. Stamer also works extensively with health care providers, health plans and insurers, health care clearinghouses, their business associates, employers, banks and other financial institutions, and others on risk management and compliance, investigations, defense, and other actions by plaintiffs, OCR and other federal or state agencies, reporting known or suspected violations, business associate and other contracting, commenting or obtaining other clarification of guidance, training and enforcement, and a host of other related concerns.  Her clients include public and private health care providers, health insurers, health plans, technology and other vendors, and others.  In addition to representing and advising these organizations, she also has conducted training on discrimination and other civil rights, pandemic and other contagious disease, HIPAA, FACTA, PCI, medical confidentiality, insurance confidentiality and other privacy and data security compliance, quality, reimbursement, and a broad range of other industry internal controls, compliance, risk management, employment, patient safety, staffing, credentialing, board governance, antitrust, contracting and other legal and operational concerns for a multitude of clients and associations ranging from the Association of State & Territorial Health Plans, Los Angeles County Health Department, ISSA, HIMMS, the ABA, the American Health Lawyers Association, the Medical Group Management Association, SHRM, schools, medical societies, government and private health care and health plan organizations, their business associates, trade associations and others.

A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see here.

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Other Helpful Resources & Other Information

We hope that this information is useful to you.   If you found these updates of interest, you also be interested in one or more of the following other recent articles published on the Coalition for Responsible Health Care Reform electronic publication available here, our electronic Solutions Law Press Health Care Update publication available here, or our HR & Benefits Update electronic publication available here.  You also can get access to information about how you can arrange for training on “Building Your Family’s Health Care Toolkit,”  using the “PlayForLife” resources to organize low-cost wellness programs in your workplace, school, church or other communities, and other process improvement, compliance and other training and other resources for health care providers, employers, health plans, community leaders and others here. If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail by creating or updating your profile here. You can reach other recent updates and other informative publications and resources.

Examples of some of these recent health care related publications include:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.THE FOLLOWING DISCLAIMER IS INCLUDED TO COMPLY WITH AND IN RESPONSE TO U.S. TREASURY DEPARTMENT CIRCULAR 230 REGULATIONS.  ANY STATEMENTS CONTAINED HEREIN ARE NOT INTENDED OR WRITTEN BY THE WRITER TO BE USED, AND NOTHING CONTAINED HEREIN CAN BE USED BY YOU OR ANY OTHER PERSON, FOR THE PURPOSE OF (1) AVOIDING PENALTIES THAT MAY BE IMPOSED UNDER FEDERAL TAX LAW, OR (2) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY TAX-RELATED TRANSACTION OR MATTER ADDRESSED HEREIN.

©2015 Cynthia Marcotte Stamer, P.C. Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.

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