In the last few weeks, the Biden Administration has released a number of final rules including some that address civil rights in health care, staffing ratios for long-term care facilities, and overtime pay.

Nondiscrimination Protections and Advancing Civil Rights in Health Care

HHS issued a final rule to advance protections against discrimination in health care on the basis of race, color, national origin, sex, age, and disability. The rule:

  • Requires providers to “make reasonable efforts” to identify whether any “patient care decision support tools” used could result in discrimination (page 368). These tools are defined as any technology used by a provider to support clinical decision making, including AI (see pages 375, 378). This discrimination prohibition would go into effect approximately by March 2, 2025. The Office of Civil Rights (OCR) may take the following factors into consideration when determining if “reasonable effort” was made (page 384):
  • The entity’s size and resources.
  • Whether the entity used the tool in the manner or under the conditions intended by the developer and approved by regulators.
  • Whether the entity received product information from the developer of the tool regarding the potential for discrimination or identified that the tool’s input variables include race, color, national origin, sex, age, or disability.
  • Whether the entity has a methodology or process in place for evaluating the patient care decision support tools it uses, which may include seeking information from the developer and reviewing relevant medical journals and literature.
  • Holds HHS’ health programs and activities to the same nondiscrimination standards as recipients of federal financial assistance.
  • Considers Medicare Part B payments as a form of federal financial assistance, which brings it under HHS’ civil rights laws.
  • Requires that covered health care providers, insurers, and grantees proactively let people know that language assistance services are available at no cost to patients.
  • Requires covered health care providers, insurers, grantees, and others to let people know that accessibility services are available to patients at no cost.
  • Clarifies that covered health programs and activities offered via telehealth must also be accessible to individuals with limited English proficiency, as well as those with disabilities.
  • Protects against discrimination by codifying prohibition against discrimination based on sex and LGBTQ patients.
  • OCR is not changing any of the religious protections in the rule and states, “Recipients may rely on the protections in religious freedom and conscience laws or seek further assurance of these protections from OCR, if they wish. Recipients are not required to seek assurance of an exemption in advance but may raise a claim under an applicable Federal religious freedom and conscience protection in the context of an OCR investigation or enforcement action.”

Minimum Staffing Standards for Long-Term Care Facilities

Last week, CMS issued a final rule that establishes new minimum nurse staffing requirements for Long-Term Care (LTC) facilities and Skilled Nursing Facilities (SNF). CMS is finalizing a total nurse staffing standard of 3.48 Hours Per Resident Day (HPRD), which must include at least:

  • 55 HPRD of direct Registered Nurse (RN) care
  • 45 HPRD of direct nurse aide care
  • Any combination of nursing staff to account for the additional 0.48 HPRD needed to comply with the total nurse staffing standard.

CMS is also finalizing enhanced facility assessment requirements and a requirement to have an RN onsite 24 hours a day, seven days a week. Implementation of the new staffing ratios will be phased in order to ensure health care systems are able to prepare the workforce.

Restoring and Extending Overtime Pay Protections

The Department of Labor (DOL) finalized a rule that will increase the standard salary level used to determine which salaried employees are entitled to overtime pay protections under the Fair Labor Standards Act. Currently, salaried employees who earn less than $35,568 per year are entitled to overtime pay. Beginning July 1, 2024, that standard will increase to $43,888 per year; the standard will raise to $58,656 per year beginning January 1, 2025.

The DOL will also amend the salary level standards for certain highly-compensated employees who are paid a salary, earn above a higher total annual compensation level, and satisfy a minimal duties test. The current standard for highly compensated workers is $107,432 per year; this will increase on July 1, 2024, to $132,964 per year, and to $151,164 beginning January 1, 2025. Beginning July 1, 2027, the DOL will redetermine this standard every three years by applying the methodology used to set this salary level. For further details about the rule, click here.