Accessibility Law and How They Apply to Health Plans

MORISSA FREGEAU: I'm trying to get my screen so I can see my notes where I can see it and the page where everyone else is seeing on a different screen.

Karen, I don't think I'm going to be able to see questions because I can't get the share to where I can see my notes and chat so bucked read the questions, that would be helpful.

KAREN ANDERSON: Not a problem at all.

Happy to do it.

MORISSA FREGEAU: All right, if everybody gives me a minute we will get started.

KAREN ANDERSON: While you are doing that, Morissa, I do want to announce that this meeting is being recorded.

I also would like to ask everyone to, if you are not speaking, please keep your microphone muted.
And also to please keep your video off unless you are using it for either presentation or for communication purposes.

MORISSA FREGEAU: One more time, thank you.

I'm going to try and do my screen again.

I apologize.

Technology is a wonderful thing until you can't do it right.


I think I got it right now.

Good afternoon! Thank you for attending my breakout session.

We have almost made it to the weaned! I really appreciate all of you that hung in and came to my workshop here.

It's been a great three days together.

It is the end of the day, it is a Friday, so let's just take a little stretch and get started! I'm Morissa Fregeau, I am a middle-aged white woman with long, silver hair in a pony tail.

I have a paisley shirt with a maroon jacket with my good luck pin which is a fish, my father's middle name is Fishall and everyone called him "Fishee" so all of us have fish pet pins in my family.

I am current Senior Associate Down sell at Aflac and I have worked in accessibility for more years than I have been an attorney, including ten years prior to law school that I was a social worker and counselor and with any own vision and accessibility issues.

I want to let folks know that a lot of what I'm going to talk about may be things that you know but I don't want to make assumptions so I'm going to go ahead and—

I don't know why that happened but let me stop it.


I'm going to go ahead and do my presentation.

If you have questions at all throughout, please put it in the chat and Karen will help me with that or go ahead and come off mute and ask me.

So I know a lot of emphasis at this conference has been on the plaintiff's side and the advocacy side.

And I am on the in-house side which is not always seen as the advocacy side, but I do want you to know that when I was a social worker it always felt like I was trying to fight with the outside.

And when I became an attorney and started working in-house, I realized that all of the things that I had been advocating for so many years as a social worker for I could now advocate for on the inside.

So that was part of the reason for my change.

So, 1 in 5 people in the U.S. have a disability.

That's probably way more.

That is from the census in 2010.

As we know, the census was taken last year, however, we don't have those full results yet and I don't have a crystal ball but I would expect that there are more than just the one in [sic] people in the US that have a disability.

Remember, that 1 in 5 are individuals who say they have a disability.

It doesn't account for the people who never say they have a disability or who have a disability based on aging.
So what I have on my screen is I have a set of four boxes.

The first—this is to talk about how we remove barriers.

My first box visual, and the reason it's—my slide is titled "Removing Barriers" is because the purpose of accessibility is to remove barriers to allow all individuals to have equal access to technology.

So the first it visual.

This is those who experience low vision, who have blindness, who have—may wear reading glasses or any other sorts of barriers where they need technology to have a screen reader and I'm sure all of you know much better than I do all of the things available for those with—who have individual visual.

The next box over shows an ear and this is for auditory.

Those individuals who may be hard of hearing, who are deaf, who need other provisions for digital accessibility like closed captions, captioning, sign language interpreters like we have here.

The next box down is Dexterity.

Dexterity is for individuals who can't use a mouse, who function in other ways to use a keyboard who also may have slower than average response in their hands.

For example, my 93-year-old mother who has been using her computer for many years has a very hard time putting a password in timely.

When there is a time frame associated with putting that in.

And the next box that we show is a picture, is a purple picture of a brain which is how I like to envision my brain and these are for individuals who may have learning disabilities, who are distracted easy, who have an inability to remember or focus on large amounts of information.

All of these circumstances can be permanent.

They may also be temporary.
For example somebody with carpal tunnel syndrome may have difficulty using the keyboard, it may be correctible.

Those individuals with cataracts, they may have low vision needs but that may be corrected.

Also a person who breaks their arm or has some other injury, these are examples of the type of injuries that may be temporary.

So what type of assistive technologies do we see?

So this is a screen with several—with six circles with all the different types of assistive technology there might be.

The first box for a screen reader.

The screen reader is for individuals who need to read a screen via technology means.

There are several different technologies used for screen readers.

The next one down is a screen magnifier.

A screen magnifier for people like me who have low vision and need to extend the—who they'd to either read in large print or read it much bigger with a magnifier.

The next one is voice control.

This is for individuals who don't use a keyboard and who need to use their voice to control their access to a screen.

And if we think about that, voice control started with Dragon many years ago, probably in the early 90s.

And at that time only individuals with disabilities used it.

Now we see we all use it with our phones, with our Alexa devices we use our voice to control what we want to do on our mobile phone.

The next one down is an alternative pointing device.

This is for individuals who don't use a mouse.

When I was a social worker, I had a client who was quadriplegic, very early technology, it was the 90s.

He had a device that he could hook to his eyebrow and that was how he moved on his screen.

So that's an example of an alternative pointing device.

The next one around our circle is closed captioning.

And closed captioning or captioning is for individuals with videos or TV so that—and this meeting, who need to—who need to see what I'm saying.

The last one on my screen is an alternative keyboard.

An alternative keyboard could be like a Braille keyboard.

For those of us who don't use a Braille keyboard sometimes we use the J and the F if you feel your keys you know that the J and F stick up a little bit so we happen where we are on the keyboard.

And those are some examples of assistive technologies.

So what needs to be accessible?

I don't need to tell anyone in this audience what needs to be accessible.

You all know what needs to be accessible, websites and devices, documents, video, and I don't think there is anyone who is not here today that when we talk about accessibility we mean everything.

Who is responsible for accessibility?

I would like you to invite you to go ahead and tell me who you think is responsible for accessibility in the chat?

I can't see the chat so—

KAREN ANDERSON: I'm watching.

MORISSA FREGEAU: I think we all know everyone is responsible for accessibility.

It's like security, when you have a website and you look at security, everything about that, you can't go forward unless everybody is responsible for security.

Accessibility is the same thing.

You can't leave it to your IT defer if your content author and your graphic designer didn't first put that together.

So that's a little bit of background of accessibility.

So let's talk about what I came here to talk to you about today.

These are the federal laws that apply to health plans, the American With Disabilities Act, the Rehabilitation Act, the Affordable Care Act and the Medicaid Managed Care Rule and these are all federal laws and specific to plans with regard to accessibility but today I'm going to concentrate on federal law.

In 1973 the Rehabilitation Act was enacted and it was modeled after the Civil Right Act.

It took 17 more years before the ADA was enacted in 1990.

The ADA has several titles.

In this—in these last three days we've heard a lot about Title III but I'm going to talk about Title I and II today and these apply to employer groups.

Title III is about public access ask we will touch on that but I'm going to concentrate on the provisions that apply to employer groups.

I don't know why this keeps popping up but I'm going to put it down.

So the Rehabilitation Act has several sections.

Section are and 508 apply to government agencies and entities that give services to government agencies and I'm talking to talk about these sections.

Section 508 was added to the Rehabilitation Act and amended in 1990 and it has language that we will see that mirrors some of the provisions of the ADA.

And in the Affordable Care Act Section five 7 in the nondiscrimination provision it applies to entities that receive financial assistance from HHS.

We will discuss this and changes that came in 2020.

And the Medicaid Managed Care Rule governs Medicaid plans administered by managed care agencies.

So what do these laws have in common?

And I would like to invite you to come off mute and tell me what you think about—so what I have on my screen, on the left-hand side I have a box called equality.

In this box there are three boys, they are each standing on one box, trying to see a baseball game.

The tallest boy can see very well, the middle boy who is a little shorter can see as well, and the shortest boy who only has—who has his one box can't see at all.

The fence is in his way.

In the next visual box we have what I title "equity" and we have the tallest boy with no box and he can see the game.

The middle boy with one box and he can see the game very well and now our shortest boy standing on two boxes can also see.

So let me know what you think is the difference here between equality and equity.

And you can put it in the chat or you can come off mute and just talk.

I would like this to be iterative.

Go ahead.

KAREN ANDERSON: I have one hand raised.


Go for it.

You are muted.

SPEAKER: Hello, yes, I'm Sherif.

I would say that equality just gives the same service without the needs.

Without looking into the needs.

Equity, in the other picture, it caters to the needs of each person.

MORISSA FREGEAU: Excellent, yes, I really agree.

Anyone else have any thoughts?

Well that was really great.

So I think that as we look at this, when we are looking at laws, the laws, the federal laws were promulgated to ensure that an individual is not excluded.

This is the same that we would expect for all of us.

It's not surprising that the Rehabilitation Act was modeled off the Civil Rights Act as it is a civil rights law and hopefully to provide equity and not just equality.

So I was set to give this presentation last year and then there was COVID.

I don't need to tell anyone that COVID brought a greater need to ensure that people with disabilities needed access to things during the pandemic.

It was not smooth and one thing that happened is HHS exactly a year ago issued a memo telling medical providers that all emergency messages—and this meant covered entities who were also subject to the ACA.

All emergency messaging needed to be available in multiple formats, addressing individuals with disabilities and reinforce that services needed to provide effective communication with individuals who were deaf, hard of hearing, blind, have low vision or speech disabilities through the use of qualified interpreters, picture books and other means.

That was really in insurance companies who had been working on accessibility, they came into gear to get those emergency messages off the ground and those who were behind had a harder time with that.

I think the other thing that I put on my screen here and it doesn't have to do with health plans and the law, but I think it was important.

The first case for ASL interpreter was Martinez versus Cuomo and this happened in May of 2020 and I think it was a shame that our press conferences had to wait for an order to have ASL without knowing that, yes, that would be the right thing to do.

I'm going to talk about how laws relate to websites, mobile applications, the phone, verbal communication, and written communication.

And feel free to ask questions along the way.

There are also state laws that relate to websites, in particular there are regulations for—in states for provider directories and the need for directories to be accessible to individuals with disabilities.

I want to point that out even though I'm mostly focusing on federal law.

When we look at websites they need to be accessible to individuals with disabilities.

That is sort of flat out what needs to happen.

It needs to be for members and enrollees and the members of the public.

So a member of a health plan is an individual that has that insurance and any other family members that also have insurance and an enrollee is an individual who is being looking for insurance or who is enrolling in insurance and members of the public are self-explanatory.

What needs to be accessible?

I think we talked about that, everything on the website needs to be accessible.

It's interesting that state laws have concentrated on provider directories because they think—we talked about this in another session I was on that if the directory is accessible but you can't get to the directory that also is problematic.

So the standard within the law is the Website Content Accessibility Guidelines 2.0.

So this standard is what is in 508.

It's what's in the commentary in Section 1557 and before the 508 refresh in 2017 there was not the standard within the law.

As we all know, the ADA has not come out with the standard yet September within commentary and within lawsuits but I'm just concentrating on the law and not case law.

The 2.1 was published in June of 2019 but there was no update in the law.

The Access Board actually came out and said they were going to update in the law.

I think 3.0 is now being worked on by the WCAG.

I will be interested to know what happens within the law once 3.0 is there but I don't have a crystal ball and I haven't seen any indication that anything will change.

So where does this standard come from?

On the left I have the original provision from the ADA which says "public entities that choose to provide services through web-based applications or that communicate with their constituents or provide information through the internet must ensure that individuals with disabilities have equal access to such services."

They don't say equitable, mind you but they do say equal access to services.

So on the right, I have the provisions of Section 1557, Section 508 and the Medicaid Managed Care Rule.

So Section 1557 has the same provision as the ADA except that it changes public entities to covered entities.
Section 508 has something very similar to this ADA provision as well, and as does the Medicaid Managed Care Rule.

The Medicaid Managed Care Rule and Medicare have requirements for cultural competency for providers.
And it's an insurance company's job, if they have a network, to ensure that their providers are doing the requirements for cultural competency and for accessibility.

There are state laws that also require this, but I think it's really important to know that both Medicare and the Medicaid Management Care Rule, if you have a managed care plan, which means that that managed care plan is responsible for their own network that that plan is responsible to ensure that those providers are giving access to individuals with disabilities.

So this is a provision from the ADA.

This is a Title III regulation about auxiliary AIDS.

I'm going to read it to you all but I bring it up to you because it's the exact same rule that was adapted for Section 1557 and within the Medicaid Managed Care Rule and what it says is "a public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services."

So it's from the ADA, but, again, it was taken and used within the Affordable Care Act.

And here is how it reads, you will recognize "public entity" was changed to "covered entity" and it's the same thing.

It says "a covered entity shall take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities."

And the definition of "disability" in Section 1557 and taken from the ADA.

Any questions so far?

KAREN ANDERSON: So far no questions in the chat, Morissa.



The Rehabilitation Act again came before the ADA and it started with Section 502.

Section 502 created the access board that created guidelines for architecture, phone and information technology.

So electronic information technology with the changes that came in 508 is now called information and communication technology.

So you may hear people use interchangeably EIT and ICT but ICT is the correct one to use now.

Section are creates the obligation for government agencies and companies receiving—Section 504 creates the obligation for government agencies and companies receiving federal financial assist science to comply with all accessibility standards.

Any company that may be subject to 504, that company can now go to their insurance provider who may not be subject to The Rehabilitation Act and by contract subject that insurance company to the Rehabilitation Act.

So if you work for a university, for example, your health insurer may be required by contract to comply with the provisions of the Rehabilitation Act.

So Section 508 came in 1986 and it came originally to address accessibility like I said, through information and communication technology.

And so—and what the ICT's provision said is that Section 508 mandates that federal agencies proceed sure, maintain and use ICT in a manner that ensures federal employees with disabilities have comparable access to and use of such information and data relative to other federal employees.

So originally this came out with regard to hardware, like phones, for copy machines, and other devices that were used pre-internet.

So this went on for a really long time.

508 was not updated.

It finally was and these new guidelines became effective March 20, 2017.

This was the first time, like I said previously, that the standard for WCAG 2.0 came out in a regulation.

This was a really big change for the accessibility community or the accessibility laws.

So how does the Rehabilitation Act apply to health plans?

In the first is second 1557 and this references—so Section 92.3 references both Section 504 and 508 and this says that 1557 is not meant to limit or apply a lesser standard.

Which is how you get to the WCAG 2.0 applies to section 1557.

In the Medicare Marketing Guide, that applies through managed care these standards, says that the plan must ensure that websites comply with Section 508 of the Rehabilitation Act.

In the Medicaid Managed Care Rule, they use the definition of readily accessible.

And readily accessible means electronic information and services which comply with modern accessibility standards such as Section 508 guidelines, Section 504 of the Rehabilitation Act and WC3's web consent accessibility guidelines 2.0 and successor versions so this means when those plans come out they are card successor versions, and guidance that did come out was be not conclusive that everyone needed to follow 2.1.

I'm going to shift to wellness programs now and wellness programs are—can be part of a health plan through your employer.

These are governed by Title I of the ADA.

And Title I prohibits discrimination on the basis of disability in regard to employment compensation and other privileges of employment including fringe benefits available by virtue of employment whether or not administered by a covered entity.

What this means is if your employer has a health plan that has a wellness program, there needs to be reasonable accommodations for individuals that cannot meet what the wellness program requires.

For example, if it is a steps program where if you walk a certain number of steps you get a certain amount off your premium or you get a prize, that has to be available to any individual who can't take those steps who can't walk or there needs to be—and a reasonable accommodation is the standard of the ADA so there could be an offer of a different program that an individual who can't do the steps can choose or if nothing else is given then whatever prize or benefit is given, that has to be given to that individual.

The individual that cannot participate in the wellness program.

If it's an amount off your premium or if it's an amount put in your HSA or something else, the employer has to give that same prize to someone who cannot do that.

Interestingly there is nothing that says the standard created has to be an accommodation that everybody can do, it just says that the benefit has to be provided to everyone.

And this is for when an employer requires—so an employer can't require participation, but it does, if they offer it and somebody wants to do it there has to be an accommodation.

What the regulation under Title I says is "a program satisfies this standard if it has a reasonable chance of improving the health of or preventing disease in participating employees and say not overly burdensome, not a subterfuge for violating the ADA."

Which I think is interesting because you could be in a wheelchair and still have high blood pressure and may benefit from an exercise program but under the ADA you would just be—you would get the benefit but not necessarily an alternative way to improve your wellness.

So let's talk about other ways that we need to be accessible within the law.

So what I'm showing is a phone, an old-fashioned office phone and calling a health plan must be accessible to individuals with disabilities, that's the standard.

Where does this come from?

In Section 1557, this should look familiar, is the provision again of effective communication.

So communication with individuals with a disability needs to be as effective as communication with others.
And the next one is Auxiliary Aids and remember this came from the provision of the ADA and changed public entities to covered entities and it says "Covered entities need to provide appropriate auxiliary aids and services where necessary to afford such persons an equal opportunity to benefit from the service in question."

So in 2020 the trump administration basically rewrote Section 1557, interestingly enough they did not change this provision.

The new provisions of the regulation have not been implemented because there was—there were three injunctions, I think, against the provisions that were taken off from 1557.

It will be interesting to see what happens under the Biden Administration in 1557.

I think we will see some changes.

The administration has a lot more things to do right now but I don't expect that these provisions will change because they didn't change previously.

So under Title III of the ADA for telecommunications this says "a public entity shall respond to telephone calls from telecommunications relay service established under Title IV of the ADA in the same manner that it responds to other telephone calls."

So this is a public entity is 911 operator, it could be the 411 operator for those of you who are old enough like me to understand what a 411 operator is.

It could also be any other public entity like a government organization.

So how does a telephone communication relay service work?

A relay service works through a communication assistant who facilitates a call for an individual who is deaf or hard of hearing or has a speech impairment.

There are several ways.

It could be text-to-voice, this is where an individual types and the communication assistant speaks.

A voice carryover where the individual speaks and the communication assistant translates and types an answer back.

Speech-to-speech is where an individual speaks and the communication assistant translates.

Also there is a provision under the FCC who regulates the relay services that in the U.S. that public relay services have Spanish-speaking communication assistants.

So under each health plan is required to comply with HIPAA and HIPAA is a law about privacy.

So there was controversy if somebody used a communication assistant that an individual would have to sign a disclosure to allow that communication assistant to talk to the health plan.

To in 2004 a long time ago now, the FCC published a notice that HHS approved of that said that using a relay service communication assistant does not violate HIPAA and a disclosure form is not required.

Now I know because I've heard this, that some people still say that their doctor's office says they need to sign a disclosure form but that is not true.

If you use a communication assistant, HIPAA allows you to talk to—through a communication assistant without that provider or that insurance company violating HIPAA.

So, as you all probably know, the law originally only allowed for TTY and as I understand, I have never used TTY but I understand that TTY is pretty much like using a rotary phone.

There was much objection to that I'm sure from several of you here, so in 2017 as part of the changes to 508, there was—it was Section 255 which transitioned from TTY to real-time text.

And real-time text can be found on your mobile phone because carriers were required to add it.

And what real-time text is, is that when you text today you text someone waits for the text and then texts back.

Real-time text means that the individuals see as you're typing what's on the screen.

That's real-time text and you can find it in your accessibility sections of your phone.

So this is applicable to telecommunications services through the public 711 communication assistant operator and it came into place—the law did not become effective until June 30th, 2020, that was the compliance date.

Now if an individual uses RTT they can call a 911 operator and use RTT.

It's calling communication assistance through 711.

Another section of verbal communication that's part of Section 1557 about verbal communication is that an individual does not have to bring another individual to interpret for him or her.

So Section 1557 requires that a covered entity provide a sign language interpreter unless—and if that individual brings someone to interpret, the entity cannot rely on that person except in an emergency.

A minor child cannot be relied on to interpret unless there is an I am meant threat to safety of the individual and there is no interpreter available.

I think some of you have seen that it has been challenged in some court cases.

We see about emergency rooms providing sign language interpretation.

So a video interpreter can be used for ASL interpretations, but the provisions of 1557 have some common-sense terms which is if the individual can't see the video then it's not okay.

So there must be a dedicated high-speed connection and an image large enough to display the interpreter's face, arms and hands.

You can see that this is problematic in an emergency room if you're flat on your back and the video—how do they place it above your head.

And this is also for visiting nurses with Medicaid or Medicare plans where you have home health aides into rural areas they do not have broadband so that's not a high-speed connection so you cannot rely on video interpretation.

The next provision of that is that the individual who can hear needs to be able to hear the video and the equipment needs to be set up quickly.

It can't take all day for the equipment to be able to be set up.

So I've gone really fast.

Does anybody have questions, thoughts, comments they would like to make?

510 you have your hand raised but no name there so go ahead.

You will have to come off mute though.

SPEAKER: Can you hear me?


SPEAKER: My name is Steven, thank you for this presentation.

I had a question about HIPAA in regard to another area where I think it's being frequently violated.
Many practitioner websites are not accessible to screen readers and forms that medical offices require as a provision of medical care are not providing accessible formats.

What that results in, in my view, is people being able to—audio is fuzzy—

MORISSA FREGEAU: Yeah, I have heard that as well.

I think that that's—you know, for a HIPAA notice it needs to be accessible and the form itself, you're right, if you need to fill out a disclosure form, if you can't fill it out then it's not accessible and it would violate Section 1557 if that provider was subject to it.

SPEAKER: I'm not talking about a disclosure form I'm talking about the questionnaire that is clearly covered under HIPAA, that's a condition for the patient receiving care.

Something of that nature or a portal that contains test results that is private in nature.

MORISSA FREGEAU: Yes, those all would be required to be accessible under Section 1557 and I think that's important because I've heard this from before I'm going to mute you because it's making me echo.

The kiosks that you see in providers' offices, if they aren't equipped with a screen reader with earbuds then everybody knows your information that you're giving there, or if you have to ask in a doctor's office for them to do the form for you, I think that that could be.

I have not seen that challenged yet but I have heard the problem from others in the NFB that that is problematic.

It is not equitable that an individual who is required to fill out forms in a doctor's office has to have assistance to do that and can't do it on their own with the screen reader or before they even get to the office.
I think unfortunately the way the law reads is that it's not necessarily equity, it's, you know, it is that a provider's office can get away with having a physical person help you, and still would be within the law.

But I have not seen that challenged.

It would be interesting to see that challenged.

So thank you for your question.

Does anybody else have a question?

KAREN ANDERSON: We have two more hands up.

MORISSA FREGEAU: Go ahead, Michael.

SPEAKER: Can you hear me now?


SPEAKER: So my question was could you explain exactly what the definition of a covered entity is under Section 1557?

MORISSA FREGEAU: Yes, I'm sorry, a covered entity is an entity that receives federal financial assistance from HHS.

So any provider who receives Medicare funds, any provider that sees a patient who is in the exchange, any plan, any insurance company that has a plan that they sell within the exchange, those are entities that receive federal financial assistance.

Any Medicaid plan receives federal financial assistance and any Medicaid Managed Care Plan so that's an insurance company that runs a plan for a state those are all subject to Section 1557.

So, again, we're talking about health coverages, not all insurance plans would be subject to those provisions.

SPEAKER: But those that are not might be subject to the ADA, right, so there would still be some protections?

MORISSA FREGEAU: Exactly, they would be subject to the ADA or the Rehabilitation Act by contract.
So if you work for a public bit of and you hire insurer, you can require them to comply with the ADA by contract.

SPEAKER: Thank you.

MORISSA FREGEAU: You have you.


You need to come off mute.

SPEAKER: Yeah, my name is Victor and on these state and federal COVID vaccination sites, they are requiring people to sign usually consents and warnings on mobile pads.

I'm visually impaired.

Is that a violation?

MORISSA FREGEAU: Unfortunately I don't think it is.

I think it's wrong but I'm not sure it's a violation of the law.

But it—I would have to think that threw—

SPEAKER: Company.

MORISSA FREGEAU: It's through your insurance company?

SPEAKER: They're billing—the sites are billing insurance.

MORISSA FREGEAU: Yeah, actually some sites are billing, some are not.

Some public sites, yeah, that's an interesting thought is if they are—if they are seeing, say, people with Medicare and Medicaid, are they required.

I think quite honestly they would be required to follow Title III of the ADA but I'm not sure you would have a 1557 argument.

It is a public administration of the vaccine that is not accessible, that to me is a public entity that should be subject to Title III butt also probably subject to 504 of the Rehabilitation Act.

They would be required to comply because they are a public—they were chosen to be the public entity to give the vaccine fits a public site.

In Massachusetts we have both public sites and then you can go to like CVS which may be a whole different thing but we have like these public mega sites, and I would think they would be subject to the rehabilitation act but I'm not sure.

But I don't think they would be subject to 1557.


KAREN ANDERSON: We have a question if the chat.

Can we talk briefly about how 1557 can be applied to plan design?

For example, covering services for one category of disability but not another?

MORISSA FREGEAU: So there is a provision in 1557 that you cannot discriminate in the benefits that you give.

And that I think is interpreted loosely in terms of disability.

I think we see more of that in the state where, for example, if a state requires autistic services that it has to be in the plan.

I think 1557 when they give this sort of blanket statement that you can't—you know, that benefits can't be discriminatory, that they don't—that there isn't definition around that like there is in the states.

There are more states and more progressive states that machine date certain benefits are given for disability and we do have the mental health parity law which either has been—there has been litigation in the last two years for those types of benefits that companies are not being—you know, that are not providing services within parity, but in 1557 it's there but there is not a lot of guidance around it and I have not seen—I haven't seen litigation around it but it is required within a plan that it's not discriminatory.

Plan that it is not discriminatory.

Anything else?

KAREN ANDERSON: That's all that I see.

MORISSA FREGEAU: Okay, so after verbal communication written communication is what we are looking at next to be accessible.

Under Section 1557 and within the Medicare guidance, and the Medicaid Managed Care Rule, there is a preferences section that says that your primary preference must be given on an ongoing basis.

So this begins that if you ask your plan to provide to you large print documents, the guidance says that an individual has to act—ask, but they don't have to continue to ask and that a plan is supposed to give preference to that individual's primary preference on an ongoing basis.

I have seen that Medicare is paying attention to this more in managed care providers and asking this question of how are you continuing to give an individual their primary preference.

And you see this a lot especially in Medicare for large print where an individual, is asking over and over.

And one thing that in particular is that it only applies to required communications.

So if your health plan does a pretty newsletter, they're not required, actually to give that to you in that alternative format.

They should, because it's the right thing to do but within the law and the guidance, you are only required—the health plan is only required to provide this to required communications.

So that could be your EOB, your insurance certificate, it could be any insurance plan document, it could be your application for insurance, all of those things would need to be provided in the format that you've asked for.

Whether that's an accessible PDF, large print, anything else.

The one thing that is different is an ID card.

So your ID cards that you have for a—from your insurance plan, those are not required to be accessible because the majority of rules—regulations around ID cards are for providers.

The ID card is a provider document not meant to be a consumer document and as up those are not required to be accessible.

These responsibilities for both verbal communication and written communication is for when you are already a member.

Remember, everything has to do with when you are signing up for benefits, when you are a member and when you are a member of the public.

So if your employer, for example, has a meeting that employees can go to to learn about their insurance, there would be a requirement that whatever the documents that the insurance company brings to present that those are presented in an accessible manner when an individual asks.

I don't know what's going to happen with the Biden Administration, I don't have a crystal ball.

Day one on, their accessibility statements, if you haven't seen it, go look at it.

It's one of the better ones I've seen.

I think that Biden is committed to accessibility and as some of you know the DOJ who is the regulator for the ADA proposed regulations under the Obama administration and they were never implemented under the Trump administration.

I think those might be dusted off.

Christine Alani said in the last presentation I was at said she didn't think they would be dusted off anytime soon and she knows better than I do but I do think we could see renewed DOJ investigations, and we could see updates to 1557.

I don't think it will go back to what it originally said but I do think we will see some changes coming.

And maybe they will be strengthened, and HHS has received feedback about 1557 and hopefully we will see renewed regulations around that.

So any other questions, comments, discussion that you would like to have?

I will stop sharing so we can talk.

KAREN ANDERSON: We do have a comment in the chat.

It says we need to look at—Schmitt v. Kaiser major decision to the affect that benefit design may not discriminate against people with disabilities.

John, I believe Schmitt versus Kaiser is an older case, right?

John, did you want to talk about it and unmute yourself?

You don't have to but I agree with you that there is case law about benefit plan designs not discriminating against people with disabilities.

I particularly wanted to concentrate on the different laws.


I will unmute you.

Let me find you.

KAREN ANDERSON: Should have just been done.


JOHN: This is a 2020 case.


JOHN: And the issue there was whether insurance companies violated the discrimination provision by universal exclusion of coverage for hearing aids.


JOHN: That was basically dismissed at the trial court level, it went up to the Ninth Circuit and it was upheld by the court and gave lead to amend and they said you may have a case there if the discrimination against hearing aids affects pry dominantly people with disabilities and remember that's the ADA definition of disability that is inherits or substantially limits a major life activity.

Other on the other end of spectrum maybe it's not discriminatory if the coverage that is offered for cochlear implant basically serves the most needs for people with hearing loss.

We have amended the complaint.

I wasn't involved in the case initially but I am now on remand and we have amended the case to say we can make a good argument that doggone near everybody who has a hearing aid only gets one because they have experienced a significant limitation on their own life activities and by the way almost nobody is impaired enough to qualify for a cochlear implant.

So we're still in the renewed motion to dismiss stage but this changes things a lot.

There are limitations.

MORISSA FREGEAU: Yeah, no, it will really change things.

John, that was a discussion that came up when the ACA required hearing aids for children but not for adults.
Under essential benefits and other states.

There was an advisory that came out that said okay, you can do it for children, that's okay, but the same provisions like certain eyeglasses that may have been covered, you know, it has always been interesting to me that we cover eyeglasses but not hearing aids.

I will be interested to see how that comes out.

JOHN: What the 9th Circuit said is that's a place to start, if it's not a prescribed benefit it doesn't necessarily let the insurance provider off the hook.


I will look for that.

Thank you.

Anyone else have anything to add?

Well, great.

Thank you so much for hanging in there.

Late on a Friday, I really appreciate it.

It's a beautiful day in Massachusetts, so hopefully it's a beautiful day where you are and you could spend a little time outside and it's been great meeting some of you over the last three days.

I hope that we get to meet again at another conference or next year.