The proposed rule

The proposed rule would do the following:

Eliminate the definitions section of the current rule and instead provide definitions "explicitly in other sections or through incorporation by reference to relevant statutes or regulations." This would remove the "on the basis of sex" definition, which was at issue in the Franciscan Alliance, Inc. v. Burwell case. The proposed rule would eliminate specific provisions related to gender identity nondiscrimination. As such, application of Section 1557 will then depend on prohibitions based on sex under Title IX of the Civil Rights Act.
Change the definition of a "health program or activity" to include health care entities as defined in the Civil Rights Restoration Act of 1987 (CRRA)—an entity that is "principally engaged in the business of providing…health care"—that receive federal financial assistance. For non-health care entities, Section 1557 would only be applicable to the extent that the health insurance programs administered by the entity receive federal financial assistance from HHS.
Include a religious and conscience-based exemption for covered entities.
Eliminate the current rule's notice and taglines requirements.
Revise the requirements related to individuals with limited English proficiency (LEP). Under the proposed rule, covered entities would be required to take "reasonable steps to provide meaningful access" to its programs or activities by individuals with LEP. HHS would consider the following four factors to determine compliance with this provision: 1) the number or proportion of LEP individuals eligible to be served or likely to be encountered in the eligible service population; 2) the frequency with which LEP individuals are in contact with the entity's covered health program, activity, or service; 3) the nature and importance of the entity's health program, activity, or service; and 4) the resources available to the entity and costs.
Eliminate the provision that allows individuals or entities to sue directly in federal court under Section 1557.
Remove the requirement that the covered entity designate one or more employees to be responsible for enforcement of the nondiscrimination requirements or the maintenance of grievance procedures for violations of the rules.

The comment period on the proposed rule ends on August 13, 2019. Once a final rule is issued, it will go into effect in 60 days.

Instant Insights /

Impact of HHS's proposed ACA revisions to employers

More From HR Executive

Related Stories

Recommended For You