AHA cautiously supportive of proposed nondiscrimination rule, asks for clarification

The America Hospital Association (AHA) expressed its general support while also asking for clarification on some points of a nondiscrimination Proposed rule issued by HHS in September of 2015. While the AHA agreed with the overall spirit of the proposed rule, which is meant to prohibit discrimination and differential treatment within health programs and activities, the organization urged the agency to “clarify that differential treatment based on scientific evidence and common sense approaches to organizing care would not be considered discriminatory.”

Proposed rule

In an effort to update the HHS policies on nondiscrimination, the agency issued a Proposed rule that would impose new requirements for communication with disabled individuals and improve language assistance for those with limited English proficiencies in health care settings (Proposed rule, 80 FR 54172, September 8, 2015). The rule would also provide for remedies for individuals that are victims of sex discrimination in these circumstances. HHS issued the proposed rule under Section 1557 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) (see HHS moves towards health care equity, proposes to leave sex discrimination behind, Health Reform WK-EDGE, September 9, 2015).

Cautious support

In a letter to the HHS Office for Civil Rights (OCR), Ashley Thompson, senior acting executive for policy at AHA, explained that while the association supports “the overall intent behind and direction of the proposed rule,” the AHA is “concerned that, as written, the rule could inhibit effective care in some instances.” Specifically, the AHA outlined three general areas of concern regarding the implementation of the proposed rule: (1) scientific evidence; (2) genomics; and (3) the approach to English proficiency.

Scientific evidence

The AHA comments stressed that the Proposed rule should promote safe and effective care that is based on scientific evidence. Because risks and treatments may vary across age, gender, physical stature, and genetics, the AHA strongly recommended that “HHS make clear in the final rule that, when treatment is differentially provided in keeping with the scientific evidence or with common sense approaches to ensure safe, high-quality care,” it would not violate the new nondiscrimination rule. As an example, Thompson cited examples of care differences based on risk, such as recommendations that women get mammograms despite the fact that men can develop breast cancer as well, and differences based on physical attributes, such as medication doses based on patient weight. As such, the AHA asked HHS to clarify that these types of approaches would not violate the proposed rule.

Genomics

The AHA also called for a “flexible approach” which would “account for the evolution and future learning” in the field of genomics. The idea that genetic codes could make certain patients more susceptible to certain diseases or conditions or more responsive to particular treatments is just beginning to emerge and gain credibility. In this vein, the AHA requested that HHS confirm that “this rule will not inadvertently suggest that all patients must be treated in the same manner when science suggests the best outcomes can be achieved through genetically determined treatment approaches.”

English proficiency

Finally, the AHA also expressed concern over the Proposed rule’s English proficiency communication approach. Specifically, Thompson wrote that the AHA “questions whether placing notices in 15 different languages in multiple places around the hospital, or placing 15 or more taglines on the hospital’s website, is the correct way” to achieve the goal of ensuring those who are not proficient can receive the proper translations. In turn, the AHA suggested the development of an icon that would indicate that translation services are available.