The U.S. Department of Health and Human Services (HHS) Office of Civil rights (OCR) recently issued a final rule implementing section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination in health care programs and activities on the basis of race, color, national origin, sex, age, or disability. Covered entities include health programs or activities that receive federal financial assistance from HHS. This includes Medicaid and Medicare funds except those receiving only Medicare Part B. However, it is rare a physician receives only Part B and not other Medicare funds such as meaningful use payments or Medicare Advantage Plans. The HHS regulatory analysis concluded that about 900,000 physicians, most of the practicing physicians in the United States, will be covered.
Nondiscrimination
Most of the nondiscrimination provisions are nothing new, as they reference long-standing federal anti-discrimination laws. However, it is important to note that Section 1557 is the first Federal civil rights law that broadly prohibits sex discrimination in all federally funded health care programs and activities. The final rule requires covered entities to provide individuals equal access to health programs and activities without discrimination on the basis of sex and to treat individuals consistent with their gender identity.
Also notable is that the final rule adopts and provides guidance on the longstanding civil rights principle that covered entities must take reasonable steps to provide meaningful access for each Limited English Proficiency (LEP) individual eligible to be served or likely to be encountered in their health programs and activities. The standards incorporated into the final rule are flexible and context-specific, taking into account factors such as the nature and importance of the health program and the communication at issue and other relevant considerations, such as whether an entity has developed and implemented an effective language access plan appropriate to its circumstances.
LEP language assistance service requirements must meet the following criteria:
1.
Free of charge;
2.
Accurate and timely;
3.
Protect the privacy and independence of the individual;
4.
Use qualified interpreters when required to provide meaningful access to LEP individuals; and
5.
Use qualified translators when translating written or electronic documents.
LEP individuals cannot be required to provide their own interpreters and covered entities may not rely on staff who do not meet the definition of “qualified bilingual/multilingual staff” to interpret. Covered entities may also not usually rely on friends or family of patients for interpretation. The rule makes exceptions for the use of adult friends or family in emergency situations or when requested by the individual and otherwise appropriate, and for minor children in emergencies.
Section 1557 Requirements
Assurance of compliance
Each covered entity applying for federal financial assistance must assure its compliance with Section 1557.
HHS form 690 that assures compliance with Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, and the Age Discrimination Act of 1975 now also includes Section 1557.
Notices
The final rule requires all covered entities to post information telling consumers about their rights and telling consumers with disabilities and consumers with Limited English proficiency (LEP) about the right to receive communication assistance. They are also required to post taglines in the top 15 languages spoken by individuals with LEP in the states in which the covered entity operates, advising consumers of the availability of free language assistance services. To minimize burden on covered entities, Office of Civil Rights (OCR) has prepared a model notice and model nondiscrimination statement that covered entities can use if they choose to do so. The Medical Association has prepared sample notices that can be found below.
This information must be posted in conspicuous physical locations where the entity serves the public, on its website, and in significant publications and communications targeted at enrollees, applicants, and members of the public. Notices and significant publications and communications provided by covered entities must also have taglines in the top 15 non-English languages in the entity’s state. Small-sized significant publications of a covered entity, such as postcards and trifolds, must have an abbreviated nondiscrimination statement and taglines in the top two non-English languages in the state.
Grievance Procedures
The rule requires covered entities with 15 or more employees to have a civil rights grievance procedure and an employee designated to coordinate compliance. The rule includes a model grievance procedure that can be found below.