On July 19, 2016, the HHS Office for Civil Rights (OCR) published materials, including training materials for health care providers and Notices of Nondiscrimination and Taglines that alert limited English proficient (LEP) individuals of available language assistance services. The OCR released these materials to assist providers in their implementation of Section 1557 of the Affordable Care Act, and the implementing regulation by the OCR that recently became effective.
Section 1557 of the Affordable Care Act prohibits the exclusion of participation in, the denial the benefits of, or other discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, on the basis race, color, national origin, disability, age or sex. On May 13, 2016, the OCR finalized a regulation implementing Section 1557, which included the following provisions:
- Since the enactment of Section 1557, individuals are protected from sex discrimination under federal law for the first time in health care. This includes equality of health care coverage and access on the basis of sex or gender identity. Some providers and plans previously may have been subject to similar substantive requirements under state law.
- Health care providers must take reasonable steps to provide meaningful access to LEP patients, which may include language translation services. Health care providers must also post a notice of individuals' rights, including providing information for communication assistance for LEP individuals, as well as taglines indicating the availability of language assistance in the top 15 languages spoken by LEP individuals in the state in which the health care provider is located. The final rule also prohibits the use of low-quality video interpretation services or unqualified staff as translators.
- Health care providers continue to be required to ensure effective communication with individuals with disabilities, which may involve the use of auxiliary aids and services, such as alternative formats and sign language. Providers must ensure that disabled individuals have meaningful access to programs and activities provided through electronic and information technology with specified exceptions for financial or administrative burdens or when providing access would result in a fundamental alteration in the nature of the program or activity, as well as marketing practices and benefit designs. The rule also applies the standards for physical accessibility of new construction or alteration of buildings and facilities from the 2010 Americans with Disabilities Act.
- Health care providers are required to implement a grievance procedure for handling complaints of discrimination. A model grievance procedure is located in Appendix C of the Final Rule, published May 16, 2016.
The final rule became effective July 18, 2016. However, provisions related to benefit plan design will become effective the first day of the first plan year beginning on or after January 1, 2017.
Hooper, Lundy & Bookman, P.C. assists clients with a range of OCR compliance activities, including compliance counseling, policies and procedures, workforce training and managing discrimination complaints. For more information, please contact: In San Francisco, Felicia Sze or Paul Smith at 415.875.8500; in Los Angeles, Sansan Lin at 310.551.8127; and in Washington D.C., Robert Roth at 202.580.7701.