Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities, 46558-46560 [2013-18707]

Agencies

• DEPARTMENT OF HEALTH AND HUMAN SERVICES
• Office of the Secretary

[Federal Register Volume 78, Number 148 (Thursday, August 1, 2013)]
[Proposed Rules]
[Pages 46558-46560]
From the Federal Register Online via the Government Printing 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 https://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 https://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?

[[Page 46560]]

    (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]
BILLING CODE 4153-01-P