The Robert Wood Johnson Foundation issued public comments stating the HHS non-discrimination rules would hamper health equity.
A non-discrimination rule proposal out of the HHS Office for Civil Rights (OCR) could actually considerably hinder health equity by rolling back certain protections on the basis of sex and English language proficiency, according to the Robert Wood Johnson Foundation.
The proposal in question, which would amend section 1557 of the Affordable Care Act, aims to get rid of administrative burden for some healthcare entities. Section 1557 outlines certain regulations protecting vulnerable patient populations from discrimination in healthcare. Specifically, section 1557 directed HHS to apply civil rights laws to the ACA exchanges and health plans.
Those civil rights laws included those protecting from discrimination on the basis of race, color, national origin, disability, age, or sex. In May 2016, HHS confirmed the definition of sex, stating that it applies to those who identify as “male, female, neither, or a combination of male and female.”
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This latest proposal would roll back that definition, a move that HHS says makes the regulation adhere to the specific language of the law. HHS also outlined a set of lawsuits questioning the legality of the provision and which halted enforcement of the 2016 definitions of sex.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” OCR Director Roger Severino said at the time of the rule’s proposal. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives,” said Severino. “The proposed rule would accomplish both goals.”
HHS confirmed that section 1557 of the ACA would still provide protections on the basis of the traditional definition of sex.
But those protections are not enough in an increasingly diversifying patient population, critics have stated. In recent comments on the rule, the Robert Wood Johnson Foundation (RWJF), which focuses on driving health equity, said that patients may lose access to necessary healthcare services.
“Discrimination and lack of access to providers attuned to the needs of sexual and gender minorities present a serious barrier to health care for lesbian, gay, bisexual, and transgender (LGBT) populations,” said Richard Besser, MD, the president and CEO of RWJF. “The Foundation supports the existing regulatory definition of what constitutes discrimination on the basis of sex, which now includes gender identity and gender expression.”
This proposal would limit protections for members of the LGBT community, Besser added. In addition to opening loopholes for sex and gender stereotyping and discrimination, Besser pointed out that the proposed rule could limit access to care for certain individuals.
Insurers – even those that receive federal funding – could deny transgender individuals access to certain gender-affirming procedures, a move that RWJF said would limit health equity and have negative mental health consequences.
RWJF acknowledged the several lawsuits that HHS said prompted its rule change, but argued that there is no reason to walk back the expanded definition of sex at this time.
But the proposal goes beyond impacting discrimination on the basis of sex.
HHS explained that it would maintain protections that require accessible facilities for those with physical disabilities and tools that would help individuals who are visual or hearing impaired. The rule would also require organizations and payers to provide adequate materials for individuals who do not speak English and access to interpreter and translation services.
“We are committed to full enforcement of civil rights laws before, during, and after any rulemaking,” said Severino. “We are also committed to the elimination of regulations that contradict law or raise the costs of healthcare without achieving intended results.”
Those eliminations may lead to further discrimination based on disability, RWJF countered in its comments.
“The proposed regulation could also limit access for people who require auxiliary aids and services to effectively communicate due to a disability,” Besser explained.
“The proposed rule removes clarifying language from the rule adopted in 2016 that states that covered entities must provide ‘equipment and devices’ that are necessary for effective communication. This change in the proposed rule, when combined with the weakening of requirements to notify people of their rights under 1557, means that people with disabilities may not even know that they have the right to resources to ensure they can participate fully in their care.”
The rule would also roll back certain reporting requirements for non-discrimination protocol, HHS explained. Of note, HHS and OCR proposed to get rid of language that requires organizations to notify patients of alternative language services.
Previous iterations of section 1557 required healthcare entities to mail notices to patients explaining that they offered written materials in at least 15 different languages. HHS said this effort cost organizations billions of dollars, and nearly $3 billion more than the $7.2 billion over five years the Administration initially estimated.
Getting rid of these protocols will eliminate a projected $3.2 billion in what HHS said was unnecessary paperwork that was being sent to families the agency noted primarily speak English. The agency also rolled back what is said were duplicative requirements for providing language assistance, which would yield $400 million in cost savings over five years.
These cost savings are intended to free up resources for providers to offer better language and other assistances to patients.
“As a child of Hispanic immigrants, I know how vitally important it is that people receive quality healthcare services regardless of the language they speak, and this proposal grants providers the needed flexibility for achieving that goal,” said Severino. “The American people are tired of unnecessary regulations getting in the way of access to affordable healthcare, and today’s proposal would remove $3.6 billion in regulatory burdens that are ultimately being passed down to patients.”
But that might not be the case, RWJF stated. Cutting back these provisions will likely limit access to care for non-English-speaking patients and hamper their ability to engage with their healthcare providers. Language barriers create serious hurdles to meaningful patient engagement, communication, and trust for the nearly 25 million individuals who speak another language other than English, Besser pointed out.
“The current regulations are an important step toward ensuring that all people in the United States are able to get the care they need,” he wrote. “In order to ensure that everyone in the United States is able to access the care they need regardless of national origin or level of English fluency, we recommend maintaining the current standards for providing language access as opposed to adopting the proposed regulations, which offer fewer guarantees of adequate language access.”
Date: August 13, 2019
Source: patient engagement hit