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Lawyers, advocates and clinicians band together to defend nondiscrimination section of ACA

September 19th, 2017 | Posted in Consumer Focus, Quality Care

As the debate continues over the possible repeal and replacement of the Affordable Care Act (ACA), civil rights and patient advocacy groups have banded together to issue a defense of nondiscrimination protections found in Section 1557 of the health care act.

Section 1557 extends nondiscrimination protections found in other areas of civil law to individuals in health programs or activities supported or funded by the Department of Health and Human Services (HHS).

That rule went into effect on Jan. 1, except for portions put on hold by a federal judge in December. The injunction bars enforcement with regard to “termination of pregnancy” and “gender identity.”

On Sept. 14, the National Health Law Program (NHeLP), The Leadership Conference on Civil and Human Rights, National Center for Transgender Equality, National Partnership for Women & Families, and the National Women’s Law Center brought several advocacy experts together to offer a defense of the nondiscrimination section.

Section 1557 is “integral” to the ACA and “revising it will limit access to comprehensive health care for women and LGBTQ persons,” claimed the group of advocates, according to a news release posted on CivilRights.org.

The injunction was issued by federal Judge Reed O’Connor in U.S. District Court for the Northern District of Texas on Dec. 31, 2016, in the case of Franciscan Alliance v. Burwell. The Franciscan Alliance and other groups argued that it is entitled to a religious or conscience exception under Title IX.

“Section 1557 builds on longstanding federal civil rights laws, and is the first federal civil rights law to prohibit sex discrimination in health care. Attempts to weaken those protections is a direct assault on all the communities the rule protects, including people of color, women, people with disabilities, seniors, people whose primary language is not English, immigrants, and LGBTQ individuals. All individuals need to be protected from discrimination in health coverage or care. We expect the Department of Health and Human Services to fully enforce the law,” said Vanita Gupta, president and CEO, The Leadership Conference on Civil and Human Rights, according to the advocates’ release.

Meanwhile, the American Medical Association (AMA) is joining the call for HHS to “to seek stakeholder input and formal public comment before making any changes to existing regulations pertaining to prohibitions against sex-related discrimination in health care programs,” according to a Sept. 15 blog post on the AMA Wire.

In that post, senior AMA writer Andis Robezkieks writes that O’Connor’s injunction “required the Trump administration to issue periodic progress reports on any and all ‘rulemaking proceedings initiated with respect to the challenged rule.’”

“The administration told O’Connor on Aug. 4 that ‘a draft of a proposed rule is going through the clearance process within the executive branch.’ The next status report is due Oct. 16,” wrote Robezkieks.

Meanwhile, the other portions of Section 1557 remain in effect.

Remember that patients or advocates who believe a patient has or is being discriminated against for any reason can file a grievance with Medicare or the accrediting organization that allows the health organization to bill Medicare for services.

That includes very specific requirements by The Joint Commission (TJC), one of the most prominent among healthcare accrediting organizations in the United States. TJC has longstanding requirements for hospitals to protect patient rights, including nondiscrimination according to race, age or sexual orientation.

Both TJC and CMS cracked down on hospitals two years ago on how organizations were handling complaints, according to DecisionHealth’s Inside the Joint Commission (Feb. 23, 2013). Those complaints can include anything from discrimination to quality of care.

A complaint should be made first to the hospital, which is required to under CMS requirements on Notice of Rights, section A-0118 of the CMS State Operations Manual, Appendix A, which cites Condition of Participation (CoP) §482.13(a)(2), stating a hospital must “establish a process for prompt resolution of patient grievances,” including informing each patient who to contact to file a grievance.

Similarly, TJC has requirements under its Rights and Responsibilities of the Individual standard RI.01.07.01 to not only have a process for handling patient complaints, but must acknowledge when it cannot immediately resolve a complaint and provide the patient or her advocate with information on who to contact further about the problem.

TJC has elevated the seriousness of the requirement by tying it to both Leadership and Medical Staff standards requiring patients to be included in any concerns about clinical practices and that overall complaints about quality of care are the responsibility of the governing body.

If a response to complaints to the hospital or other healthcare organizations are not satisfactory, complaints can be made directly to the accrediting organization. CMS maintains a list of complaint contacts at various accrediting organizations here.

Several accrediting organizations allow complaints to be made online. For instance, TJC’s complaint webpage is https://www.jointcommission.org/report_a_complaint.aspx.

For information about how to file a complaint directly with Medicare, go to https://www.medicare.gov/claims-and-appeals/file-a-complaint/complaint.html.

Discrimination complaints can be made directly to HHS’ Office of Civil Rights: https://www.hhs.gov/civil-rights/filing-a-complaint/complaint-process/index.html. — A.J. Plunkett (aplunkett@h3.group.)