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ADA supports Office for Civil Rights proposal to amend parts of Sec. 1557

August 13, 2019

By Jennifer Garvin

Washington — The ADA announced its “strong support” Aug. 13 for the U.S. Department of Health and Human Services Office for Civil Rights’ proposal to amend portions of the Section 1557 Final Rule.

Sec. 1557 is the provision of the Affordable Care Act that prohibits health care entities that receive federal financial assistance from discriminating on the basis of race, color, national origin, age, disability and sex. The final rule, which was implemented in 2016, applies to health care providers who receive certain funds through HHS, including Medicaid and the Children's Health Insurance Program as well as providers who receives reimbursement for Medicare Part C (Medicare Advantage) plans, regardless of whether the plan reimburses the dentist or the patient.

According to OCR’s proposal, the agency would, among other things, repeal the Section 1557 requirements for covered dental practices to post taglines in the top 15 non-English languages spoken in the state and notices of nondiscrimination, and would expand permissible use of audio-based interpretation services for individuals with limited English proficiency.

In a letter to OCR, the ADA said it “strongly supports nondiscrimination in health care and equal access to care for all patients without regard to race, color, national origin, sex, age, religion or disability,” but noted ADA member dentists have reported “great difficulty” with complying with the rule.

“The time and cost associated with interpreting these regulations, printing these documents or altering existing publications and modifying websites to comply with these requirements has been significant for dental offices. We conservatively estimate the dental profession has spent $240,450,000 on compliance to date,” wrote ADA President Jeffrey M. Cole and Executive Director Kathleen T. O’Loughlin.

The ADA also noted that certain requirements are difficult to implement due to other overlapping requirements from the federal government and states and said the “multiple overlapping nature of the notices and taglines has diluted their impact to the extent that patients may disregard them.”

The ADA also expressed concern about the requirement that the taglines be distributed in the top 15 non-English languages spoken in the dentist’s state.

“The majority of dental offices are private, small businesses,” Drs. Cole and O’Loughlin wrote. “Given their small staff size, it would be more effective for them to concentrate on providing information in the language(s) other than English that are spoken among their patients or potential patient pool. This is widely variable across the country, with some dental offices never encountering patients who do not speak English while others may encounter patients who speak languages not listed in the state’s top 15 spoken languages.”

Regarding language assistance, the ADA supports OCR’s proposal to adopt the four factors from the existing Department of Health and Human Services Limited English Proficiency guidance to assist entities in determining the extent of a covered entity’s obligations to provide language assistance services.

“ADA believes that audio-only interpretation is likely to provide effective communication for many situations involving foreign language speakers, and agrees with OCR that additional video standards may not justify the costs, particularly with respect to small providers,” Drs. Cole and O’Loughlin wrote.

Regarding the Americans with Disabilities Act, the ADA supports OCR’s proposal “to specify that the proposed regulation not be applied in a manner that conflicts with or supersedes exemptions, rights or protections contained in several civil rights statutes, such as the Architectural Barriers Act of 1968, the Americans with Disabilities Act of 1990 (as amended by the Americans with Disabilities Act Amendments Act of 2008) and Section 508 of the Rehabilitation Act of 1973.”

The ADA urges OCR to “add the word ‘obligations’ to ‘exemptions, rights or protections’ in order to help clarify that this consideration is intended to help reduce redundancy and compliance burden confusion for health care providers” and also called for OCR to require that each Section 1557 covered entity simply comply with the standards that apply to each entity under the Americans with Disabilities Act, in order to reduce burden, confusion and complexity.

“For example, a health care provider that must comply with Title III of the Americans with Disabilities Act should not be required to comply with any provision of Title II or any Section 1557 regulation that does not fully align with Title III,” Drs. Cole and O’Loughlin said.

The ADA also asked OCR to require recipients of federal financial assistance to ensure that health programs or activities provided through their websites comply with the requirements of Title III, rather than Title II, of the Americans with Disabilities Act if the recipient is otherwise covered by Title III.

“Requiring small practices to comply with both Title II, for Section 1557 purposes, and Title III, for Americans with Disabilities Act purposes, is burdensome, confusing and unnecessarily complex. The burden on small practices of complying with both Title II and Title III would likely outweigh any benefit to individuals who require accessible technology,” Drs. Cole and O’Loughlin concluded.

In regards to enforcement, the ADA agrees with OCR that the final rule “improperly blended substantive requirements and enforcement mechanisms” of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973.

“ADA supports OCR’s proposal to return to the enforcement structure for each underlying civil right statute as provided by Congress and to apply the enforcement mechanisms already provided for, and available under, existing statutes and their implementing regulations, including the rights and remedies under such laws,” Drs. Cole and O’Loughlin wrote.

In addition to the ADA, more than 10 state dental associations and the Organized Dentistry Coalition have also written to OCR to support the proposal.

For more information on Sec. 1557, visit the ADA website.