June 13, 2016
On May 13, 2016, the Department of Health and Human Services (HHS) issued the final rule implementing Section 1557 of the Affordable Care Act (ACA) of 2010. The rule is designed to protect populations that that are disadvantaged in the health care context by prohibiting discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. Healthcare providers will have until July 17, 2016 to comply with the new regulations.
In many cases, healthcare providers will have already complied with many of the provisions of the new regulation. The final rule brings together and works with already existing civil rights laws such as Title VI of the Civil Rights Act of 1964 (Title VI), Title IX of the Education Amendments of 1972 (Title IX), Section 504 of the Rehabilitation Act of 1973 (Section 504), the Americans with Disabilities Act of 1990 (ADA) and the Age Discrimination Act of 1975 (Age Act). However Section 1557 provides new regulations regarding sex, language, and disability discrimination.
Which Healthcare Organizations Must Abide by the New Rule?
The rule will apply to the following “covered entities”:
- Any health program or activity any part of which received funding from HHS (such as hospitals that accept federal financial assistance);
- Any health program or activity that HHS itself administers;
- Health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces.
Health programs and activities are defined in Section 1557 to include all operations of an entity that is principally engaged in administration of health-related services or health-related insurance coverage. This coverage extends to providing assistance with obtaining health services or health related insurance coverage.
For individuals with limited English proficiency (LEP), the final rule incorporates existing Title VI regulations. For example, covered entities must offer “qualified interpreters” to persons with limited English proficiency. Under the new rule, a “qualified interpreter” is someone who has proficiency in speaking and understanding English and one additional spoken language, adheres to client confidentially, and has an understanding of specialized medical vocabulary.
Section 1557 mimics existing title VI regulations by prohibiting providers from using a family member or friend as a medical interpreter or to facilitate communication, unless there is an imminent threat to safety and a qualified interpreter is not available. As with other LEP regulations under Title VI, in assessing compliance with the new regulations, HHS will take into account the nature and importance of the information being communicated in relation to the cost of the language assistance services.
In addition, the final rule requires that covered entities post notices of nondiscrimination and “taglines” on websites, in significant publications, and in conspicuous physical locations stating the entity does not discriminate and providing notice regarding the availability of language assistance services. These notices and taglines must be in at least the top 15 languages spoken statewide by persons with limited English proficiency. These requirements are modified for smaller sized publications. For example, a postcard would only require the top two non-English languages spoken in the state. To reduce the administrative burden and financial cost, HHS has provided translated material in 64 different languages here.
The final rule also prohibits discrimination on the basis of sex which extends to discrimination on the basis of “sex stereotyping and gender identity.” The rule does not require that a health service that is typically or exclusively provided to individuals of one sex be provided to a transgender individual. For example, a prostate exam conducted by a covered entity would not need to be conducted on someone who does not have a prostate, regardless of their gender identity. However, for services that are appropriately provided to an individual, the covered entity must provide coverage for those health services on the same terms regardless of an individual’s sex assigned at birth, gender identity, or recorded gender. Should a health program or activity be sex specific, the covered entity must be able to demonstrate an “exceedingly persuasive justification’’ for a sex-based classification. Interestingly, Section 1557 does not cover discrimination based on sexual orientation.
Access to Information Technology
For individuals with disabilities, the covered entity must make sure that it has equal access to online and electronic materials with a single limitation which provides if the alteration would create an undue burden or fundamentally alter the health program. Covered entities must provide appropriate auxiliary aids and services for individuals with disabilities which may include, making a website auditory for someone who is blind or providing the information in a non-electronic format.
The proposed rule integrates existing federal protections against disability-based discrimination from Section 504 and the ADA. However, Section 1557 is meant to specifically extend these standards to the health programs and activities of HHS and state and local governments and private entities that receive Federal financial assistance.
Reporting and Compliance
Covered entities with 15 or more employees are now required to maintain a grievance procedure and designate an employee to coordinate Section 1557 compliance. Appendix C of the final rule includes a model grievance procedure for covered entities to follow. Covered entities with fewer than 15 employees do not have to comply with this portion of the regulation.
The final rule does not include a religious exemption. But, it does not supersede protections that already exist in Federal law with respect to religious beliefs. For example, the final rule does not displace the protections afforded by provider conscience laws, the Religious Freedom Restoration Act, provisions in the ACA related to abortion services, or regulations issued under the ACA related to preventive health services.
The existing enforcement mechanisms under Title IV, Title IX, Section 504 and the Age Act are not invalidated or limited by Section 1557. Many of these mechanisms include increased record keeping, and mandatory compliance reports, reviews and investigations. When violations cannot be corrected by these informal means, harsher penalties are available such as suspension/termination from federal health care programs (like Medicare or Medicaid), or refusal to grant Federal financial assistance. However, the final rule states that an individual may now bring a civil action to challenge a potential Section 1557 violation.
Additional information on the final rule may be found here.
Covered entities should take steps to ensure they do not create exposure to discrimination claims by violating provisions of the final rule. If you have any questions about compliance with Section 1557 or need assistance implementing changes to your organization’s policies and procedures to ensure compliance with these new rules, please contact a member of HDJN’s Compliance team.
The information contained in this advisory is for general educational purposes only. It is presented with the understanding that neither the author nor Hancock, Daniel, Johnson & Nagle, PC, is offering any legal or other professional services. Since the law in many areas is complex and can change rapidly, this information may not apply to a given factual situation and can become outdated. Individuals desiring legal advice should consult legal counsel for up-to-date and fact-specific advice. Under no circumstances will the author or Hancock, Daniel, Johnson & Nagle, PC be liable for any direct, indirect, or consequential damages resulting from the use of this material.