Section 1557 – ACA’s New Non-Discrimination Final Rule

The Office of Civil Rights (OCR) within the U.S. Department of Health and Human Services, recently issued a Non-discrimination in Health Care Programs and Activities rule. This final rule implements Section 1557 of the Patient Protection and Affordable Care Act (ACA). Section 1557 builds on existing civil rights laws and prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities and applies broadly to many providers and suppliers.

The final rule applies to every health program or activity any part of which receives Federal financial assistance provided or made available by HHS or is administered by HHS. The OCR, for example, interprets the final rule to apply to entities such as hospitals, health clinics, health insurance programs, state Medicaid agencies, community health centers, physician’s practices, pharmacies, home health care agencies, Health Insurance Marketplaces and insurers participating in those Marketplaces. While Section 1557 does not apply to Medicare Part B, OCR clarified that the final rule applies to any provider who receives reimbursement for Medicare Part C and Medicaid, stating that “regulation would likely cover almost all licensed physicians because they accept Federal financial assistance from sources other than Medicare Part B.” Given the broad reach of the rule, other providers, such as dentists, are also require to comply.

While Section 1557 has been in effect since the ACA was passed in 2010, OCR’s final rule went into effect on July 18, 2016. The compliance date for the notice requirement went into effect on October 17, 2016.

Effective Communication for Individuals with Disabilities

The final rule incorporates the standard for effective communication used in Title II of the American with Disabilities Act. What this means for providers, regardless of the number of people they employ, is the requirement to make available appropriate auxiliary aids and services to persons with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question. Unlike before, providers now do not have the discretion of selecting which auxiliary aid or service to provide and are required to give primary consideration to the requests of individuals with disabilities.

Procedural Requirements – Notices Required

To ensure that patients are aware of their protection under the law, HHS is now requiring all covered entities to post a notice of consumer civil rights as well as taglines that alert individuals with limited English proficiency to the availability of language assistance services. Taglines are required to be posted in the top 15 languages spoken by individuals with limited English proficiency statewide. OCR has provided sample notices and taglines on its website. Finally, covered entities with 15 or more employees are now required to have a grievance procedure and a compliance coordinator.

Although the final rule does not require covered entities to develop a language access plan, the development and implementation of a language access plan is one factor that the Director of OCR will consider when evaluating a covered entity’s compliance with this rule. Furthermore, each covered entity that employs 15 or more persons is required to adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of grievances alleging any action that would be prohibited by Section 1557.

If you have questions about the nondiscrimination rule, the Affordable Care Act, Medicare, Medicaid or have other health law questions, please contact our office.