Complying with ACA Section 1557 Non-Discrimination Regulations
VMS Summary & FAQs
On May 18, the US Department of Health and Human Services (HHS) issued a Final Rule implementing a prohibition of discrimination by health care services found in Section 1557 of the Affordable Care Act (ACA). Section 1557 builds on long-standing Federal civil rights laws that have already applied to most health care practices, such as Title VI of the Civil Rights Act of 1964 (requiring, among other things, access for those with limited English proficiency) and the Americans with Disabilities Act. While many of the provisions of the Final Rule are not new to physicians, there are several new procedural requirements and clarifications of existing requirements.
Generally, Section 1557 and the Final Rule prohibit “discrimination on the basis of race, color, national origin, sex, age or disability [by] any health program or activity, any part of which is receiving Federal financial assistance.”
Does the new rule apply to me?
The Final Rule applies to “every health program or activity, any part of which receives Federal financial assistance.” HHS expects that this applies to almost all physician practices in the nation as Federal financial assistance includes, but is not limited to: state Medicaid payments, “meaningful use” payments, National Health Service Corp funding, NIH research funding and CMS gain-sharing payments. Physician practices that exclusively receive Medicare Part B payments are not included, but practices should conduct a thorough review of their funding sources and consult an attorney before deciding they are exempt.
When does the law go into effect?
Section 1557 has been in effect since the passage of the ACA and the Final Rules went into effect July 18, 2016 – with a limited exception for practices to have until October 16, 2016 for posting required notices and taglines, discussed further below.
What does the law require?
The law clarifies and extends discrimination protections on the basis of national origin, sex, and disability and adds several new procedural requirements.
What are the new procedural requirements?
- Designate responsible employee: Practices employing 15 or more individuals need to designate at least one employee to coordinate its efforts to comply with and carry out the responsibilities under Section 1557, including investigating any grievance alleging noncompliance. (Effective July 18, 2016)
- Adopt grievance procedures: Practices employing 15 or more individuals need to adopt a grievance procedure that provides for the prompt and equitable resolution of any grievance alleging discrimination in violation of the law. HHS has provided a model procedure that meets the requirements here. (Effective July 18, 2016).
- Post notice: Beginning 90 days after the effective date of the rule (October 16, 2016) practices will need to post a notice of non-discrimination in English AND shorter “taglines” in the top 15 non-English languages spoken in Vermont about the availability of free language assistance services. The long form English notice and the 15 taglines need to be posted in a visible font size in:
- A conspicuous physical location where the practice interacts with the public (e.g. the waiting room); AND
- In a conspicuous location on the practice website (if the practices has one), accessible from the homepage of the website - meaning a link to the notice must appear on the homepage. Links to the 15 non-English taglines must also appear on the homepage and must be provided in the non-English language (e.g. “Español”, not “Spanish”). You may have to work with your web designer to ensure these links appear appropriately.
- HHS has provided a sample notice in English and sample taglines. Practices in Vermont will need the following 15 taglines: French, Spanish, Vietnamese, Chinese/Mandarin, Nepali, Serbocroatian (Serbian language), German, Cushite (Oromo language - African), Arabic, Russian, Tagalog, Italian, Thai, Japanese, and Portuguese.
- VMS has created an editable document that contains the Notice and 15 Taglines here.
- Include notice in communications: Beginning October 16, 2016, practices must also include the notice and taglines in “significant publications” or “significant communications” targeted at patients or the public. HHS will interpret this broadly and does not specify which communications are included but provides examples such as patient handbooks, consent and complaint forms, initial patient paperwork, outreach publications, marketing materials and any notice “requiring a response from an individual” – which could include patient bills or notices to contact the practice to schedule an appointment. The notice/taglines can be part of the publication or a separate insert. While the compliance date is October, you can continue to exhaust your current stock of materials before you reprint with the necessary notices.
- The full notice and 15 taglines (links above) must be included in any larger format publications.
- A shortened “statement of non-discrimination” in English and taglines in the top 2 non-English languages in Vermont (Spanish, French) must be included in significant publications or communications that are small-sized, such as postcards or tri-fold brochures.
What changes should I know about to non-discrimination/Language Access Laws
The Final Rule also clarifies and strengthens various non-discrimination protections that apply in the health care setting. Among other things, the law addresses:
- Limited English Proficiency/Requirements for Interpretation Services. Most health care providers have already been required to provide language access services to patients or prospective patients with limited English proficiency. Under this Final Rule, all covered practices are required to “take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served.”
- Practices still have flexibility to determine how to provide meaningful access and which type of interpretation (verbal) or translation (written) services to provide. For example, for verbal interpretation, practices can consider options including hiring bilingual staff, using in-person interpreters, phone interpretation services or other remote services. Written translation can range from translation of an entire document to translation of a short description of the document to an oral translation by an interpreter.
- Language access services must be provided free of charge, be accurate and timely, and protect the privacy and independence of the patient; a patient cannot be required to provide his or her own interpreter.
- To determine if a practices is in compliance, OCR will weigh “all relevant factors” such as the length and complexity of the communication; the prevalence of the language; the frequency the provider encounters the language; whether the provider weighed the patient’s preferences; and the cost of language assistance services/resources available to the practice. The primary factor OCR will consider is whether the practice has created a language access plan.
- Language access plans are not required but are strongly encouraged. They can be brief and address: how the entity will determine an individual’s primary language; identify a telephone oral interpretation service and translation service for when the need arises; identify any other types of language assistance services that may be required and identify the types of documents that may need to be translated. A detailed model that can be scaled down to your practice is available here. Interpreter resources available in Vermont are included on the VMS website here.
- Ensure you are using qualified interpreters & translators.
- Bilingual staff, interpreters and translators must all be qualified: adhere to ethical principles, including confidentiality; demonstrate proficiency in the appropriate languages; and be effective, accurate and impartial.
- Adult family can only be used in emergencies involving an imminent threat to health or safety and when no other interpreter is available OR if the patient specifically requests the family member and it is appropriate under the circumstances. The rule clarifies that in many circumstances family members are NOT competent to provide quality, accurate interpretation. Minor children can only be relied on if there is an imminent threat to safety or health.
- Interpretation over video must be capable of providing high quality images.
- Disability Discrimination:
- Practices must take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others. This includes providing appropriate auxiliary aids and services, such as qualified interpreters who can interpret effectively, accurately and impartially.
- Online services must be accessible, unless doing so would result in an undue financial burden. This means that patient portals, online forms, online appointment systems, electronic billing and other online services must be accessible to individuals with disabilities, such as vision impairments, unless doing so would impose an undue financial burden to the practice.
- Facilities or programs that are constructed or altered after January 18, 2018 must comply with the 2010 ADA Standards for Accessible Design
- Sex Discrimination
- The final rule establishes that individuals cannot be denied health care or services based on their sex, including their gender identity. Individuals must be treated consistent with their gender identity and providers may not deny or limit services ordinarily available to individual of one gender based on the fact that a person seeking such services identifies as belonging to another gender. (E.g. a provider may not deny treatment for ovarian cancer to an individual who identifies as a transgender male where the treatment is medically indicated).
- Sex-specific health programs are permissible only if the entity can demonstrate an exceedingly persuasive justification (e.g. most sex-specific clinical trials would still be considered appropriate.)
Where can I find more information?
HHS has a website dedicated to Section 1557, available here, that includes a summary of the rule, fact sheets and an FAQ page. You can also contact Jessa Barnard at the VMS at firstname.lastname@example.org.
[Revised July 2016]