Dear Association Executives - This week and last week, the Department of Health and Human Services (HHS) has issued several final rules regarding nondiscrimination. Please see below for updates on these final rules.
- Final rule was issued regarding Section 1557 of the Affordable Care Act, prohibiting discrimination based on race, color, national origin, sex, age, and disability in covered health programs and activities. The final rule applies to health programs or activities that receive HHS funding, health programs or activities administered by HHS (such as the Medicare Part D program), and the health insurance Marketplace (and all plans offered by issuers that participate in those Marketplaces that receive Federal financial assistance). The final rule, scheduled for publication in the Federal Register on May 6, will be effective 60 days after its publication. For additional information, please see HHS' Section 1557 webpage and the FAQs page. Provisions in this rule include:
- Requirement for covered entities, inclusive of health care providers, to proactively let people know that language assistance and accessibility services are available at no cost to patients.
- Requirement for health care 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.
- Final rule was issued clarifying and reaffirming nondiscrimination on the basis of sex in HHS-funded programs and services, inclusive of substance use and community mental health services. This rule is scheduled to be published in the Federal Register on May 3 and will become effective 30 days after. Additional Information can be found in the HHS press release here.
- Finally, HHS finalized a rule that 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. Check out the HHS fact sheet to learn more about this final rule, which is scheduled to be published in the Federal Register on May 9, and will become effective 60 days after that publication date. Provisions in this rule include:
- Prohibiting recipients of federal financial assistance from directly or indirectly using measures, assessments, or 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 a recipient purchases, leases (including renewals of leases), or otherwise acquires after July 8, 2024 must meet these standards. Additionally, recipients that use an examination table or weight scale in their program or activity 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 permits refusal to include individuals with disabilities from participating in or benefiting programs if such individual presents a direct threat 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 the program or if such action would require participants to incur undue financial and administrative burden. 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 or services under the program to the maximum extent possible.
Please feel free to share this information with your members. There will be less detailed descriptions of these rules in our Capitol Connector tomorrow (Friday).
Thank you very much for your time, consideration, and all the work you do. As always, please do not hesitate to reach out to me or Katherine Seibel, manager, Federal and Regulatory Activities at KatherineS@TheNationalCouncil.org.
Thank you – Reyna
Reyna Taylor
Senior Vice President, Public Policy & Advocacy
Policy Department
National Council for Mental Wellbeing
Direct: 202-774-1651
ReynaT@TheNationalCouncil.org
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Neal Comstock
Director of Membership
National Council
NealC@TheNationalCouncil.org202 748-8793
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