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Compliance With Nondiscrimination Section 1557 of the ACA Quickly Approaching

on Monday, 11 July 2016 in Health Law Advisory: Zachary J. Buxton, Editor

In mid-May the Office for Civil Rights (OCR) released final regulations for the nondiscrimination section of the Patient Protection and Affordable Care Act (ACA). The nondiscrimination provision—section 1557 of the ACA (42 USC § 18116)—prohibits discrimination in health care programs and activities on the basis of race, color, national origin, sex, age, or disability. The final regulations are effective July 18, 2016.

The law applies to “health programs or activities” that receive Federal financial assistance including those that receive funds from Executive Agencies such as the U.S. Department of Health & Human Services (HHS). This includes entities that receive Medicare or Medicaid funds. Covered entities—defined as an entity that operates a health program or activity that receives Federal financial assistance—are prohibited from discriminating against individuals on the bases listed above.

These requirements are nothing new as the OCR has been enforcing section 1557 since the ACA was signed into law in March 2010. The text of the law references long-standing anti-discrimination requirements under Federal law, including title VI of the Civil Rights Act of 1964 (race, color, and national origin), title IX of the Education Amendments of 1972 (sex), the Age Discrimination Act of 1975 (age), and section 504 of the Rehabilitation Act of 1973 (disability).

The final regulations’ requirements for nondiscrimination on the basis of sex and access to health care programs for individuals with limited English proficiency (LEP) are likely the provisions of the final rule that will have the largest immediate impact on hospitals and other covered entities.

Nondiscrimination on the Basis of Sex

The OCR prohibits discrimination “on the basis of sex” which is defined to include, among other requirements relating to pregnancy, sex stereotyping and gender identity. Sex stereotyping includes discrimination against an individual because his or her expression of his or her gender does not conform to traditional notions of masculinity or femininity. For example, the OCR investigated a private medical transportation provider in Georgia because its drivers allegedly discriminated against a frequent male passenger because of his feminine gender expression. After the investigation, the drivers received training on the appropriate usage of terminology to avoid sex stereotyping and other quality and safety measures were introduced to avoid any future occurrences.

“On the basis of sex” also includes an individual’s gender identity. Gender identity comprises an individual’s gender expression (e.g., an individual born as a female expressing his gender as a male) and also includes transgender individuals (e.g., “an individual whose gender identity is different from the sex assigned to that person at birth,”).

The OCR provides two examples of investigations in response to allegations of discrimination on the basis of gender identity. Two transgender individuals alleged separate instances of discrimination against Boston Medical Center. In the second occurrence, a transgender female alleged that Boston Medical Center staff referred to her by the wrong name and gender pronoun which ultimately delayed her medical treatment. Upon investigation, the OCR found insufficient evidence that the transgender female was discriminated against on the basis of sex but the allegations underscore the type of behavior that may trigger an OCR investigation. In contrast, the consistent, repeated, and intentional incorrect usage of pronouns or names in the treatment of transgender individuals may rise to the level of discrimination (e.g., an Emergency Room nurse consistently refers to a transgender female as “he” despite repeated requests from the patient that the nurse use “she,”).

Potential discrimination based on gender identity also includes “the discriminatory denial of access to facilities.” Although the term “access to facilities” is not included in the final regulations it is repeated three times in the regulatory preamble. This term likely covers nondiscriminatory access to restrooms for transgender individuals. Thus, a transgender male should have access to the men’s restroom and a transgender female access to the women’s restroom.

It is important to note that with recent focus on transgender issues in the political realm that discrimination on the basis of sex includes all discrimination on the basis of sex. An illustrative example from the OCR’s website is a victim of domestic violence in a Louisiana Emergency Room. The complainant in that case was “subjected to rude comments from hospital staff because he was a male victim of domestic violence” and therefore was denied appropriate care and treatment. Another example is a Minnesota hospital that treated married males and females differently. The hospital automatically listed married males as guarantors of their care while automatically listing married female’s husbands as guarantors of the female’s care.

Additional examples of OCR’s investigations for sex discrimination under section 1557 are available here.

Notice Requirements – Significant Publications and Significant Communications

All covered entities that operate a health program or activity that receives Federal financial assistance must also comply with certain notice requirements notifying its patients of their rights under section 1557 of the ACA. A sample notice is available on the OCR’s website (“Sample Notice of Nondiscrimination”) and must be placed in (a) “significant publications and significant communications targeted to beneficiaries, enrollees, applicants, and members of the public,” (b) in physical locations where the covered entity interacts with the public (e.g., patient intake points), and (c) linked from the covered entity’s home webpage. The covered entity must also place taglines in the top 15 languages spoken in their respective states along with the notice described above. The translated taglines inform LEP individuals in their primary languages of language assistance services available free of charge through the covered entity.

The OCR did not define the term “significant publications and significant communications” but instead stated that it will interpret this term “broadly.” It also made it clear that it will not limit the term to include only those communications or publications for a broad audience and stated that in some instances communications directed at individuals may be more important than a mass mailing.

Although covered entities must place the above notice in “significant publications and significant communications” the preamble to the final rule makes it clear that entities may exhaust their current stock of significant publications and communications prior to incorporating the required notice. So if you just ordered 10,000 copies of a letter or similar publication that goes out to beneficiaries, you can exhaust those 10,000 before incorporating the required 1557 notice in the next batch of 10,000.

The rule distinguishes “significant publications and significant communications” from “significant publications and significant publications that are small-sized.” Although “small-sized” is not defined, examples include tri-fold brochures, pamphlets, and postcards. Covered entities do not have to include the full notice and all 15 translated taglines in small-sized communications, but must include a shortened nondiscrimination statement (available here) and taglines in the top two languages other than English (Nebraska: Spanish and Vietnamese; Iowa: Spanish and Vietnamese).

For the notice requirements, covered entities have 90 days from the effective date of July 18, 2016 to comply.

Those hospitals that also received funds under the Hill-Burton Act should also retain the notice informing individuals that the facility does not discriminate on the basis of race, color, national origin, creed or Medicare and Medicaid status. This notice is part of Hill-Burton facilities’ community service assurance obligation that applies for the life of the facility. To confirm if you’re a Hill-Burton recipient, you can visit a list provided by the National Health Law Program to verify.

Reasonable Steps to Provide Meaningful Access to LEP Individuals

Covered entities must also take “reasonable steps to provide meaningful access” to LEP individuals. Although the regulations do not provide steadfast rules for how the OCR will evaluate compliance, it will give weight to whether or not the covered entity has a “language access plan.” In addition to the above, the LEP language assistance service requirements must meet the following criteria (45 CFR § 92.201). The language access plan must be:

  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.

The final regulations also define limitations for those individuals that may not serve as interpreters for LEP individuals. Covered entities cannot require an LEP individual to provide his or her own interpreter and cannot require an accompanying adult to serve as the LEP patient’s interpreter. An accompanying adult may serve as an interpreter in an emergency situation or if the LEP patient specifically consents to this arrangement. Furthermore, minor children cannot serve as the LEP patient’s interpreter unless it is an emergency or another qualified interpreter is not immediately available. Finally, the covered entity cannot rely on bilingual or multilingual staff to communicate directly with LEP patients unless the staff are qualified to serve in this capacity in compliance with the final regulations. The preamble states that if a treating health care practitioner serves as an interpreter that it may adversely affect the patient relationship.

Other Requirements

In addition to the above, covered entities that employ more than 15 employees are responsible for identifying a responsible employee that will bear responsibility for its section 1557 compliance and that will also investigate any alleged discrimination based on race, color, national origin, sex, age, or disability. Covered entities must also adopt grievance procedures for responding to any 1557 complaints. Although the preamble makes it clear that covered entities can adapt existing grievance procedures it provides an example grievance procedure in Appendix C to the final rule.

Individuals alleging discrimination do not have to exhaust a covered entity’s internal grievance procedures before pursuing other avenues. The existing enforcement mechanisms available under those laws referenced in section 1557 permit private rights of action. Thus, individuals alleging discrimination are permitted to file a private suit alleging a violation of section 1557 prior to pursuing an entity’s internal grievance procedures. The rule also permits compensatory damages for any section 1557 violations (45 CFR § 92.301).

The effective date for the final rule is July 18, 2016 but covered entities have 90 days from the effective date to comply with the notice provisions (45 CFR §§ 92.208(b), (d)). Note also that this article does not discuss the discrimination on the basis of sex requirements applicable to employee health benefit programs.

Hospitals and other health care providers familiar with OCR’s enforcement of HIPAA are familiar with the helpful FAQ portion of its website. The OCR has similarly provided numerous resources available on its website to help ensure a smooth 1557 transition for covered entities. The 1557 site has FAQs, fact sheets, translated notices, and translated taglines.

For any additional questions on the final rule please contact your legal counsel.

Zachary J. Buxton

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500