AHLA's Speaking of Health Law
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AHLA's Speaking of Health Law
Nondiscrimination Requirements in Long Term Care Facilities: HHS’ Section 1557 Final Rule
Section 1557 is both the nation’s first civil rights law for health care and the first federal civil rights law to focus specifically on nondiscrimination in health care. Stefanie Doyle, Associate, Baker Donelson, and Bruce J. Lederman, President and Chief Executive Officer, Charles E. Smith Life Communities, discuss the provisions of the Section 1557 final rule, which was released by the U.S. Department of Health and Human Services on May 6, 2024. Stefanie and Bruce spoke about this topic at AHLA’s 2024 Long Term and Post-Acute Care Law and Compliance in San Diego, CA. Stefanie recently co-authored an AHLA Briefing on this topic. From AHLA's Post-Acute and Long Term Services Practice Group.
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Speaker 2:This episode of A HLA speaking of health law is brought to you by A HLA members and donors like you. For more information, visit american health law.org.
Speaker 3:Hi, welcome to our podcast. My name is Stephanie Doyle, and I'm a health regulatory and long-term care attorney in Washington, DC with a law firm called Baker Donaldson. I'm here today with my colleague Bruce Lieman. Bruce, would you like to introduce yourself?
Speaker 4:Well , thank you, Stephanie. Hello, I'm Bruce Lieman. My preferred pronouns are he, him and I'm the president and CEO of Charles E. Smith, life Communities founded in 1910. We offer a full continuum of lifestyle and care options on our 38 acre campus in North Bethesda, Maryland. And that's my day job. Um, off campus . I also serve on the board of Directors of Sage. It's the nation's largest and oldest organization that offers supportive services and consumer resources to L-G-B-T-Q older people.
Speaker 3:Okay, thanks Bruce. I appreciate it. Um, Bruce and I actually spoke at ALA's February long-term Terror conference on this topic. And we are really pleased to have the opportunity to provide an update today. We are with you today to discuss the provisions of the Section 1557 Final Rule, which was released by the US Department of Health and Human Services, which we'll refer to as HHS on Bay 6 20 24.
Speaker 4:Uh, Stephanie, I think I would be really helpful if we just started out, but by a description. What is Section 1557?
Speaker 3:I think you're right. Section 1557 is both the nation's first civil rights law for healthcare and the first federal civil rights law to focus specifically on non-discrimination in healthcare. The phrase section 1557 refers to a section of the Affordable Care Act, which prohibited discrimination in healthcare on May 6th, the latest version of Section 1557 rule was implemented or was released and to be implemented, and it provided us with the latest guidance on how the law will be implemented. The rule has evolved over several versions since initially being published as a final rule in 2016 , but the 2024 version is the most comprehensive.
Speaker 4:So, so what is it exact , what does it mean exactly that the law focuses specifically on non-discrimination in healthcare?
Speaker 3:It means that the law prohibits covered entities, which will refer to as covered healthcare providers from denying program benefits to excluding from participation or treating patients and or residents differently based on certain characteristics. The protected characteristics are race, color, national origin, including in language, age, disability, and sex, or any combination of the above. The prohibition against discrimination based on sex includes a prohibition against discriminating based on pregnancy or related conditions, sexual orientation, gender identity, sex stereotypes, and sex characteristics. Nikita understanding of Section 1557 is that it prohibits discrimination by the healthcare provider so that the facility and the staff, not individual residents against individual residents. Residents may attempt to treat each other residents differently based on protective characteristics, but the facility cannot support, endorse or facilitate that discrimination.
Speaker 4:So you've mentioned that the law applies to cover covered health providers. You know, on my campus, I , I'm , I could use some clarification , uh, who exactly is a covered healthcare provider and we offer nursing home services. We have assisted living on our campus, even independent living, who's included.
Speaker 3:So the law applies generally to health programs and activities that receive HHS funding or are administered by HHS, including health insurance plans. This includes most nursing homes because they accept Medicare and Medicaid funding. The rule does not necessarily include all assisted living facilities, though assisted living facilities are covered entities under hipaa, but under the section 1557 , due the definition, assisted living facilities would only be included if they accepted federal funding such as Medicaid waiver funds. Now incidentally, the final rule clarifies that Section 1557 also applies to Medicare Part B providers, including doctors and other healthcare providers, services and outpatient care, DME and home health.
Speaker 4:So Stephanie, what exactly are we gonna talk about today then?
Speaker 3:Okay, so the rule is extensive. It has several subparts that per prohibit discrimination against individuals by covered healthcare providers and discrimination and health insurance coverage, and the use of patient care to citizen support tools. And in telehealth, it also requires covered healthcare providers to take certain actions to alert residents of their rights and to address incidences of non-compliance within their facilities. Today we're gonna provide a brief overview of the affirmative provisions of the, that the facilities are required to take under the rule as well as the non-discrimination provisions of the rule.
Speaker 4:Okay, I got it. So what does the final rule actually, what would it require, Mike , the covered entities on my , uh, or covered providers on my campus to do
Speaker 3:So? Compliance with the rule is not just about how a facility interacts with or treats its residents. The rule makes several requirements that pertain to facility operations as well. I'll take you through the timeline for these provisions by November 2nd of this year , facilities with more than 15 employees, be they full-time, part-time, or independent contractors must designate a Section 1557 coordinator who will be responsible for serving as an internal resource dedicated to coordinating and ensuring the facilities compliance with the rule. The coordinator can be one person or multiple people and can be full-time or part-time. But the coordinator's biggest responsibility will be to receive, review and investigate any grievance communicated to , to the facility alleging non-compliance of section 1557 . Also by November 2nd, 2024, all facilities, regardless of the number of employees, must post a specific notice of non-discrimination that informs beneficiaries, applicants and residents of the facility of their right not to be discriminated against by the facility based on a protected characteristic. And it must give information regarding how to file a grievance if they think they have been discriminated against by the facility. All facilities are required to make a second posting by July 5th, 2025 that provides a notice of availability of language assistance services and auxiliary aids within the facility. The notice must be posted in English and in each of the areas 15 most common non-English languages and must inform individuals of the availability of language assistance services and auxiliary aids at the facility that will be provided by the facility free of charge. Also, by July 5th, 2025, facilities must have developed and implemented a number of written policies and procedures designed to facilitate compliance with Section 1557. Now, it is important to begin developing and implementing the new policies and procedures as soon as possible because facilities must begin training their employees on the policies and procedures no later than 30 days after they're implemented within the facility, and definitely no later than May 1st, 2025, which is 300 days after the rules effective date. A facility cannot wait until the July 5th, 2025 deadline to develop an implement policies and procedures and to begin training their employees facilities must begin sooner because training must begin by May 1st, 2025.
Speaker 4:Well, well thank you, Stephanie, that , that's a lot I gather from your earlier comments. Indeed. Um, I gather from your earlier comments that developing and implementing the policies and postings is not enough. Um, aren't there other considerations?
Speaker 3:Yes. The operational aspects of the rule are very specific and facilities should begin working to implement them as soon as possible. But most of the rules, non-discrimination provisions actually become effective Friday, July 5th, 2024. So facilities should begin to orient themselves toward the new paradigm as soon as possible.
Speaker 4:Hey , uh, about those protected characteristics, I understand that some of them under the rule have new interpretations. Am I right about that?
Speaker 3:Yes, you are. Section 1557 now prohibits discrimination and healthcare on the basis of sex. Only the word sex has been expanded in definition under this version of the final rule, more so than under the prior versions of the rule. The prohibition against discrimination based on sex includes the prohibition against discriminating based on pregnancy or related conditions, sexual orientation, gender identity, sex stereotypes, and sex characteristics. As such, the rule prohibits covered entities from imposing restrictions on the care that individual providers provide based on a patient's gender identity or sex assigned at birth.
Speaker 4:You know that, that reminds me, Stephanie, of , uh, of a case that happened in a long-term care facility, the Marie King case in Maine. Mm-Hmm. <affirmative> , are you familiar? Right, I am . Uh, there in that case, a potential resident was turned away from a nursing home , um, after , uh, it allegedly discriminated against her Marie King by denying her admission after learning that she was transgender. That resulted in the landmark settlement , um, where the facility had agreed to adopt a comprehensive transgender non-discrimination policy going forward.
Speaker 3:Exactly. Now, that was under state law, but it's exactly the sort of situation that Section 1557 is designed to prevent and address the Supreme Court's interpretation of the term sex. And its 2020 decision in Bostock v Clayton County is at the heart of the matter. Now, I'm gonna paraphrase an example from the case majority opinion and put it in the context of a long-term care facility. Imagine a facility that has a policy or practice of not admitting any residents who are homosexual. Now imagine the facility hosts an orientation event for potential residents to tour the facility and visit with the staff, and invites potential residents to bring their family members and friends. A potential resident arrives and introduces the administrator to Susan, the potential resident's wife, will that resident be admitted to the facility. Now, if the policy or practice works as a facility intends, the answer depends entirely on whether the potential resident is a man or a woman. If the potential resident is a man introducing his wife, he could be admitted. However, if the potential resident was a woman introducing her wife, the facility's policy or practice would not allow the potential female, the female potential resident to be admitted. The residents. The facility's ultimate goal might not be or might be to admit homosexual residents might not be to admit homosexual resident, but to achieve that purpose, the facility must intentionally treat a potential resident worse base in part on that individual sex. This is prohibited under section 1557, and the same analysis would apply not only regarding sexual orientation, but if we were speaking of a policy or practice that would not allow admission based on pregnancy or related conditions , including individual's reproductive history, gender identity, or based on sex stereotypes or sex characteristics.
Speaker 4:And Stephanie, I have to think of , um, it , it makes me think about sex or gendered programs and activities that are offered in skilled nursing centers. You know, specifically as I look back on my career, I think about activities where female residents are brought in for a nail care afternoon or there's a football boys night on Monday nights. Um, you know, these sort of gendered recreational events and life and leisure programming. Um, how are those like , how should I frame that within this 1557 section 1557 analysis?
Speaker 3:So, nothing in the rule prohibits a facility from operating sex separated programs of facilities, so long as it does not subject anyone, including transgender and non-binary individuals to a more than a concept called di minimus harm on the basis of sex. Di minimus harm refers to something so small saying the context of importance or severity that the law will not consider it when a non-binary individual seeks participation in a single self health , single sex health program or activity, or in a facility that maintains separate sex facilities. The facility should work with that individuals to determine where they will be best served and where they can benefit the most from the program or activity without experiencing any trauma or distress or threats to their safety due to an incorrect placement. A covered he healthcare provider must not deny a binary non-binary individual access to a health program or facility on the basis that the program or facility separates patients based on sex or offers separate male and female programs or facilities. A facility would be in violation of the rule if they refuse to admit a transgender person for care or refuse to place them in a facility consistent with their gender identity, because doing so would result in more than de minimus harm to the transgender person.
Speaker 4:So Stephanie, what would happen exactly if a facility does indeed discriminate based on sex?
Speaker 3:Well, the outcomes would be the same, be it discrimination based on sex or any of the other protective characteristics that we'll discuss later today. So race, color, national origin, again, including language, disability, or age, or any combination of the above. For example, if the facility did not discriminate based on race or sex individually, but discriminated against African American women, that would be a violation of section 1557. If the facility did discriminate based on sex or another protected characteristics the individual discriminated against could file a complaint with HH S'S Office of Civil Rights or OCR is what we'll call it. Um, if OCR determines that it has jurisdiction, first of all, OCR will investigate the complaint, possibly in coordination with another agency. If OCR identifies a violation or compliance concern, it would work with the facility to achieve compliance, possibly do voluntary compliance letters or agreements requiring the facility to develop policies or other methods that would resolve the specific incidents alleged in the complaint. However, if voluntary compliance by the facility cannot be achieved, OCR could issue a formal findings letter and refer the case to the Department of Justice or begin administrative proceedings to revoke the facility's ability to receive federal funds . In addition, individuals have a private right of action under section 1557, meaning that they can sue in court based on an alleged violation of the rule and seek relief to remedy their alleged violation in addition to filing a complaint with OCR.
Speaker 4:Alright, I, I am following you, but are there any other restrictions on how a facility may or may not treat people based upon their sex that we need to know about?
Speaker 3:Yes. Section 1557 applies to all covered healthcare programs, including applicable long-term care facilities, but nursing homes also have to be particularly aware of the implications that sex discrimination may have on their surveys. Nursing homes must satisfy the federal requirements of participation to receive federal funds. Nursing homes are routinely surveyed by their state survey agency under federal authority to determine whether they are in substantial compliance with the federal requirements. The State Survey Agency will identify where it believes the nursing homes compliance with the federal requirements is deficient, and we'll assign each deficiency a citation number called an FTA based on the regulatory provision that was not satisfied. Sex discrimination in nursing homes can result in certain being cited such as those related to abuse and neglect, residents rights and transfer and discharge restrictions.
Speaker 4:But assisted living facilities, right, they are not subject to the same federal regulation. So how does that work?
Speaker 3:Right. Assisted living facilities are not surveyed under federal authority. So the same deficiencies in satisfying federal law that might be cited in a nursing home wouldn't be cited in an assisted living facility. However, assisted living facilities may be subject to section 1557 depending on whether they receive federal financial assistance such as Medicaid or otherwise meet the definition of a covered healthcare facility. Assisted living facilities and nursing homes are also subject to other state and federal laws that to prohibit discrimination such as the Fire Housing Act.
Speaker 4:So, so what about the other characteristics protected under section 1557? Um, how might they be affected , uh, how might they affect a long-term care facility? I mean,
Speaker 3:Well, as we previously discussed, section 1557 prohibits discrimination based on race, color, national origin, including language, age, disability, and sex, or any combination of those characteristics. The prohibition against sex discrimination actually has a corollary in section 1550 seven's prohibition against sex discrimination related to marital, parental or family status. In this case, it would not be acceptable to treat a resident differently because they were or were not married or because they did or did not have children.
Speaker 4:You know that , that's interesting, Stephanie. I can think of many examples, not only in my career, but , um, um, but, but examples that have been shared with me where responsible parties , um, have not been quote unquote blood relatives, but rather, you know, they have been life partners or same gendered married partners who have run into problems , um, either in admission or post admission, even , uh, with being able to advocate , um, on the part of their spouse.
Speaker 3:Exactly. And Section 1557 also prohibits discrimination on the basis of association. So a facility may not treat a resident differently based on whom the individual is known to have a relationship or association with, such as a resident who may have a son or daughter with a substance use disorder or a history of substance abuse.
Speaker 4:You know, Stephanie, that can get really tricky on the operation side, especially in a skilled nursing center where by definition there are controlled narcotics. Um, I can recall instances shared with me where you can have a family member , um, a child or, or a niece or nephew who is exhibiting drug seeking behaviors, and clearly that creates , uh, an issue for the facilities administration.
Speaker 3:Exactly, exactly. Um, in another example, the rule requires facilities to take steps to provide individuals with limited English proficiency, certain required language assistance services free of charge. For many facilities, this likely means the expansion of translation services offered to their residents and their companions. And that only must the assistance services be free of charge, but they must be accurate, timely, and protect the privacy of the individual with limited language proficiency. Otherwise, they may not meet the standard for the rule.
Speaker 4:Uh, you know, it's , it is really important to highlight this, this point Stephanie at , at Charles C. Smith Life Communities. We offer 24 24 hour seven day a week access to a language hotline that will allow our associates to be able to contact this resource in order to better communicate with the resident or with their family or representative.
Speaker 3:Yes, that's , that's good. Um, very good. Lastly, for our purposes, the rule also requires that facilities timely provide auxiliary aids and services, again, free of charge, where necessary to allow individuals with disabilities and equal opportunity to participate in and enjoy the benefits of facility services. So in doing so, the facility must protect the privacy and independence of the individual. With the disability, though , um, the facility must make reasonable modifications to policies, procedures, and practices when necessary to avoid discrimination based on a disability unless doing so would fundamentally alter the nature of the program or activity that's directly from the rule . Um, many long-term care facilities have most concerns related to individuals with disabilities and accessibility well in hand. But this is still something to keep on the radar. There are also some additional provisions regarding accessibility for businesses and for buildings and facilities, accessibility of information and communication technology for individuals with disabilities and telehealth that are beyond the scope of this conversation. Um, similarly, there are provisions regarding non-discrimination and health insurance coverage and the use of patient care decision support tools that are not directly relevant here .
Speaker 4:So, Stephanie, what if a facility does not agree with some of these prohibitions? You know, let's say that it is against their mission statement or their values. Um, let's , uh, wrap it up in fundamental beliefs. Do, do they have to follow the rule anyway in spa in spite of their beliefs?
Speaker 3:So, OCR has established an administrative process under which recipients of federal funds can notify OCR of their views that they are exempt from certain provisions of section 1557 due to an applicable federal conscience of religious freedom law. Once notified OCR may grant the recipient a temporary exemption from the rule, that will remain in effect while OCR reviews their original requests and during any administrative appeal. There are also legal challenges to the rule pending as we speak. For example, on the day the rule was released, the Attorney General of Florida filed a lawsuit alleging that the rule allows HHS to force doctors to perform gender affirming care and surgery. This will no doubt be just one of other potential legal challenges, but as of now, it doesn't affect the other parts of the rule.
Speaker 4:Well, Stephanie, clearly section 1557 is complicated and nuanced. How are providers, how are facilities supposed to keep up with all of this information and ensure compliance?
Speaker 3:I think complicated nuance is a very good way to describe it. <laugh> , um, in general, facilities are well-intentioned and they don't deten intend to discriminate. So we, we have to say that upfront , but no facility has to go it alone. I do recommend reaching out to legal counsel for advice where a facility may have questions regarding necessary accommodations or other concerns.
Speaker 4:Well, Stephanie, it has been as joyful and informative to speak with you today as it was when we presented at the conference a little while ago. Thank you.
Speaker 3:I find you joyful and informative as well, <laugh> .
Speaker 4:Well , I appreciate that, Stephanie. And, okay, well, I think we're gonna end it here. Uh, we hope that this discussion has been helpful and informative to the listener and has provided you with some tools to navigate this new landscape of section 1557. Thank you so much for listening.
Speaker 2:Thank you for listening. If you enjoyed this episode, be sure to subscribe to a HLA speaking of health law wherever you get your podcasts. To learn more about a HLA and the educational resources available to the health law community, visit American health law org .