Health Care Client Alert - November 8, 2016

Implementing the Non-Discrimination Provisions of Section 1557: What Providers Need to Know

On May 19, 2016, the Department of Health and Human Services’ (the “Department”) Office of Civil Rights published the final rule implementing Section 1557 of the Affordable Care Act, which prohibits entities receiving Federal financial assistance from discriminating on the basis of race, color, national origin, sex, age or disability. Specifically, Section 1557 provides, among other things, that no individual shall “be excluded from participation in, or the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance.”

The Rule is split into four subparts as follows:

  • Subpart A contains general provisions that outline the purpose of the rule and its effective date, to whom the rule applies, and important definitions related thereto.
  • Subpart B contains the specific nondiscrimination prohibitions.
  • Subpart C contains practical guidance to follow when implementing the Rule.
  • Subpart D contains procedural items, including enforcement mechanisms and a sample notice, tagline, and grievance procedure.

We have summarized key parts of each Subpart in this client alert as follows:

Subpart A – Applicability and Assurances

Under § 92.2, the Rule applies to (i) every health program or activity, any part of which receives Federal financial assistance provided or made available by the Department (and can include group health plans as specified in § 92.208), (ii) every health program or activity administered by the Department, and (iii) every health program or activity administered by a Title I entity (i.e., any entity established under Title I of the ACA, including State-based Marketplaces and Federally-facilitated Marketplaces). Please note, however, that with respect to the foregoing (i), funds provided under Medicare Part B are not considered “Federal financial assistance;” therefore, while the applicability of the rule is broad (covering providers receiving payments from Medicaid, CHIP, Medicare Parts A, C, D and Medicare Advantage plans as well as providers receiving “meaningful use” payments), Medicare B is excluded. Despite this exclusion, we anticipate that this Rule will affect the vast majority of our physician practice clients.

Subpart A also specifies that any entity applying for Federal financial assistance to whom the Rule applies must now submit an “assurance” on a specific form (a copy of which can be found here: https://www.hhs.gov/sites/default/files/hhs-690.pdf stating that the entity’s health programs and activities will comply with Section 1557 and the rules promulgated thereunder.

Section 92.8 of Subpart A of the Rule also contains certain notice requirements, e.g., that a covered entity notify patients (i) that it does not discriminate on the basis of race, color, national origin, sex, age or disability, (ii) of the availability of language assistance services (including how to obtain such services), as well as auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, free of charge, when such aids or services are necessary to ensure equal opportunity to participate to individuals with disabilities, (iii) that a grievance procedure exists and how to file a grievance in the event a patient believes he or she has suffered discrimination, and (iv) how to file a complaint with the Office of Civil Rights. In addition to the notice, taglines, which are defined as short statements written in non-English languages that indicate the availability of language assistance services free of charge, must also be posted in accordance with the Rule.

The notice and taglines referenced above must not only appear in conspicuous physical locations where the entity interacts with the public, but also they must appear on the entity’s website and in any “significant publications and significant communications” targeted to patients of the practice as well as members of the public (unless such publications and communications are small-sized, e.g., postcards and tri-fold brochures). Please note the significant publications and significant communications have been construed to include marketing materials.

Each covered entity generally must comply with notification requirements within ninety days of the effective date of the Rule (e.g., October 16, 2016). While we’ve yet to see any significant enforcement of the Rule given its newness, you will want to ensure you are in compliance as soon as practical if you are affected.

Subpart B – Nondiscrimination Provisions

Subpart B of the Rule contains the specific provisions prohibiting a health care entity to whom the Rule applies from discriminating on the basis of certain protected classes. Additionally, Subpart B specifies that a “covered entity may not make selections that have the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any programs” to which the regulation applies.

Subpart C – Implementing the Rule in Practice

While Subpart B contains the mandate of the Rule, Subpart C instructs covered entities on how to implement it. Specifically, any covered entity subject to the Rule must take “reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served or likely to be encountered in its health programs of activities.” In practice, this means that a covered entity will need to provide accurate and timely language assistance services, free of charge, that protect the privacy and independence of any patient with limited English proficiency. With respect to interpreter and translation services, a covered entity must use a qualified translator when translating written content in paper or electronic form. The covered entity may not (i) require an individual with limited English proficiency to supply his or her own interpreter, (ii) rely on an adult accompanying the individual to interpret or facilitate communication, subject to certain exceptions involving emergent circumstances or where the individual specifically requests that the accompanying adult translate, (iii) rely on a minor child to interpret or facilitate communication, subject to exceptions for certain emergent circumstances, or (iv) rely on staff other than qualified interpreters to communicate directly with individuals who have limited English proficiency. Subpart C also sets forth specific requirements for covered entities who wish to use video remote interpreting services, e.g., the video must be real-time, full-motion over a dedicated high-speed wide-bandwidth video connection, the video must have a sharply delineated image large enough to display the interpreter’s face, the video must have a clear, audible transmission of voices, etc.

Subpart D - Procedures

Subpart D of the Rule contains enforcement provisions as well as examples of notice documents and other items to assist covered entities in implementation. With respect to enforcement, please note that under § 92.301, private individuals can seek compensatory damages for violations of Section 1557 in administrative and judicial proceedings brought under the Rule. With respect to sample documents, Appendix A contains a sample notice informing individuals about nondiscrimination and accessibility requirements, Appendix B contains a sample tagline informing individuals with limited English proficiency of language assistance services, and Appendix C contains a sample grievance procedure enabling individuals to make a complaint regarding suspected discrimination against individuals with limited English proficiency. Examples of each of these items, as well as further guidance concerning Section 1557, are available on the HHS website as follows: http://www.hhs.gov/civil-rights/for-individuals/section-1557/index.html. Please note that unlike many other states, which require a covered entity to post taglines in only fifteen languages, covered entities serving Virginia residents should post taglines covering seventeen languages identified here: http://www.hhs.gov/sites/default/files/resources-for-covered-entities-top-15-languages-list.pdf.

Putting It All Together

Now that the Rule is in effect, covered entities should take the following steps:

  1. First, as a preliminary matter, ensure you are operating your practice in a nondiscriminatory manner.
  2. Second, post the notice and taglines required by the Rule, but be sure that you actually comply with whatever statements you have made, and make available services you have referenced in your notice. In other words, the posting should represent more than “lip service.”
  3. Review your website as well as communications and publications and add the notice and taglines to those items as needed.
  4. Review the grievance procedure, and appoint a compliance coordinator if you employ fifteen or more individuals. Ensure you comply with the grievance procedure you adopt.

If you have any questions or concerns regarding implementation of the nondiscrimination provisions, whether the Rule applies to your practice, and if so, how to appropriately comply, please contact any one of Kaufman & Canoles Health Care Practice Team attorneys.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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