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1 4153-01-P Department of Health and Human Services This document is scheduled to be published in the Federal Register on 06/14/2019 and available online at https://federalregister.gov/d/2019-11512, and on govinfo.gov 4153-01-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare and Medicaid Services 42 CFR Parts 438, 440, and 460 Office of the Secretary 45 CFR Parts 86, 92, 147, 155, and 156 Docket No.: HHS-OCR-2019-0007 RIN 0945-AA11 Nondiscrimination in Health and Health Education Programs or Activities AGENCY: Centers for Medicare and Medicaid; Office for Civil Rights (OCR), Office of the Secretary, HHS ACTION: Proposed rule. SUMMARY: The Department of Health and Human Services (“the Department”) is committed to ensuring the civil rights of all individuals who access or seek to access health programs or activities of covered entities under Section 1557 of the Patient Protection and Affordable Care Act. The Department proposes to revise its Section 1557 regulation in order to better comply with the mandates of Congress, address legal concerns, relieve billions of dollars in undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the scope of Section 1557 in keeping with pre-existing civil rights statutes and regulations prohibiting discrimination on the basis of race, color, national origin, sex, age, and disability. DATES: Submit comments on or before [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 1 ADDRESSES: You may submit comments to this proposed rule, identified by RIN 0945-AA11, by any of the following methods: • Federal eRulemaking Portal. You may submit electronic comments at http://www.regulations.gov by searching for the Docket ID number HHS-OCR-2019- 0007. Follow the instructions at http://www.regulations.gov online for submitting comments through this method. • Regular, Express, or Overnight Mail: You may mail comments to U.S. Department of Health and Human Services, Office for Civil Rights, Attention: Section 1557 NPRM, RIN 0945-AA11, Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue, SW, Washington, DC 20201. • Hand Delivery / Courier: You may hand deliver comments to the U.S. Department of Health and Human Services, Office for Civil Rights, Attention: Section 1557 NPRM, RIN 0945-AA11, Hubert H. Humphrey Building, Room 509F, 200 Independence Avenue, SW, Washington, DC 20201. All comments received by the methods and due date specified above will be posted without change to http://www.regulations.gov, including any personal information provided, and such posting may occur before or after the closing of the comment period. We will consider all comments received by the date and time specified in the “DATES” section above, but, because of the large number of public comments we normally receive on Federal Register documents, we are not able to provide individual acknowledgements of receipt. 2 Please allow sufficient time for mailed comments to be timely received in the event of delivery or security delays. 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 lobby of the building. Electronic comments with attachments should be in Microsoft Word or Excel; however, we prefer Microsoft Word. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Docket: For complete access to background documents or posted comments, go to http://www.regulations.gov and search for Docket ID number HHS-OCR-2019- 0007. FOR FURTHER INFORMATION CONTACT: Luben Montoya, Supervisory Civil Rights Analyst, HHS Office for Civil Rights at (800) 368-1019 or (800) 537–7697 (TDD). SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Background on Section 1557 and Its Rulemaking B. Litigation Challenging the Section 1557 Regulation C. Summary of the Proposed Rule D. Cost-Effective Design of the Proposed Rule II. Reasons for the Proposed Rulemaking A. Section 1557 of the PPACA Does Not Prevent or Limit Reconsideration of the Current Rule. B. The Final Rule Adopted Novel and Inconsistent Legal Interpretations of Long-Standing Civil Rights Law. 1. The Final Rule Interpreted the Scope of Section 1557 Too Broadly. 2. The Final Rule Improperly Blended Substantive Requirements and Enforcement Mechanisms of the Underlying Statutes. 3 3. The Final Rule Inconsistently Applied Federal Nondiscrimination Law. 4. The Final Rule Created New Provisions Concerning Language Access Requirements Not Adequately Justified By Law or Policy. 5. The Final Rule’s Definition of Discrimination “On the Basis of Sex” Has Been Enjoined by Federal Courts. a. Background on Title IX of the Education Amendments b. HHS’s Title IX Regulations c. Need for Consistency Among Components of HHS d. Pending Federal Litigation over Section 1557 Regulation, Title IX, and Title VII e. HHS’s Inconsistency with Other Federal Departments f. Need for Consistency with the Department of Justice on Implementation and Enforcement of Nondiscrimination Laws g. Clarity and Sensitive Balancing of Competing Interests at the Local Level C. The Costs of the Final Rule Were Unnecessary and Unjustified. 1. The Section 1557 Regulation Imposed Substantially Higher Regulatory Costs Than Predicted. 2. The Section 1557 Regulation’s Burdens Are Not Justified by Need. III. Nondiscrimination in Health Programs and Activities Provisions of the Proposed Section 1557 Rule at 45 CFR Part 92 Proposed “Subpart A—General Provisions” Proposed “45 CFR 92.1 Purpose.” Proposed “45 CFR 92.2 Nondiscrimination requirements.” Proposed “45 CFR 92.3 Scope of application.” Proposed “45 CFR 92.4 Assurances.” Proposed “45 CFR 92.5 Enforcement mechanisms.” Proposed “45 CFR 92.6 Relationship to other laws.” Proposed “Subpart B—Specific Application to Health Programs or Activities” Proposed “45 CFR 92.101 Meaningful access for individuals with limited English proficiency.” Proposed “45 CFR 92.102 Effective communication for individuals with disabilities.” Proposed “45 CFR 92.103 Accessibility standards for buildings and facilities.” Proposed “45 CFR 92.104 Accessibility of information and communication technology.” Proposed “45 CFR 92.105 Requirement to make reasonable modifications.” Request for Comments on Proposed 45 CFR 92.102 through 92.105 B. Current Section 1557 Regulation Provisions Proposed for Repeal or Reconsideration 1. Taglines, Notices, Language Access Plans, and Video Interpretation Standards 2. Redundant Provisions Duplicative of Pre-Existing Regulations 4 IV. Need for Conforming Amendments A. Nondiscrimination in Education Programs or Activities Proposed “45 CFR 86.18 Amendments to conform to statutory exemptions.” B. Proposed Conforming Amendments C. Technical Amendments V. Interim Treatment of Subregulatory Guidance VI. Regulatory Impact Analysis A. Executive Orders 12866 and Related Executive Orders on Regulatory Review 1. Summary of the Proposed Rule 2. Need for the Proposed Rule 3. Consideration of Regulatory Alternatives 4. Considerations for Cost-Effective Design 5. Methodology for Cost-Benefit Analysis 6. Cost-Benefit Analysis a. Overview b. Generally Applicable Tangible and Intangible Benefits and Burdens c. Baseline Assumptions d. Covered Entities (1) Entities Covered By Section 1557 (a) Entities with a Health Program or Activity, Any Part of Which Receives Federal Financial Assistance from the Department (b) Programs or Activities Administered by the Department under Title I of the PPACA (c) Entities Established under Title I of PPACA (2) Entities Covered by Title IX e. Cost Savings from Eliminating Notice and Taglines Requirement f. Cost Arising from Removal of Notice and Taglines Requirement g. Cost Savings from Changes to Language Access Plan Provisions h. Cost Savings Attributed to Covered Entities’ Handling of Certain Grievances i. Additional Costs for Training and Familiarization under the Proposed Rule (1) Number of Covered Entities That May Train Workers (2) Number of Individuals Who Will Receive Training (3) Total Cost of Training j. Additional Costs for Revising Policies and Procedures k. Other Costs Due to Reversion to Previous Practices l. Other Benefits or Costs 5 7. Impact on State, Local, and Tribal Entities under Executive Orders 12866, 13132, and 13175 a. State and Local Governments b. Tribal Governments 8. Avoidance of Inconsistent, Incompatible, or Duplicative Regulations B. Executive Order 13771 on Reducing and Controlling Regulatory Costs C. Congressional Review Act D. Unfunded Mandates Reform Act E. Regulatory Flexibility Act and Executive Order 13272 on Proper Consideration of Small Entities in Agency Rulemaking F. Executive Order 12250 on Leadership and Coordination of Nondiscrimination Laws G. Paperwork Reduction Act VII. Effective Date VIII. Delegation of Authority IX. Request for Comment I. Executive Summary A. Background on Section 1557 and Its Rulemaking Section 1557 of the Patient Protection and Affordable Care Act (“PPACA”)1 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability under any health program or activity that receives Federal financial assistance, or under any program or activity that is administered by an executive agency under Title I of the PPACA or by an entity established under such Title. Section 1557 cites Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) (“Title VI”), Title IX of the Education Amendments of 1972 (20 U.S.C.
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