United States: Major Changes To Nondiscrimination Requirements Under ACA Effective Soon: Are Covered Entities Ready?

The HHS Office of Civil Rights ("OCR") published a final rule May 18, 2016, broadening the nondiscrimination requirements applicable to all health programs and activities receiving federal financial assistance from HHS, those administered by HHS, and Health Insurance Marketplaces. The final rule implements section 1557 of the ACA and adds two important categories of protections: (1) prohibition of discrimination on the basis of sex; and (2) mandatory meaningful access for individuals with limited English proficiency. Also included in the final rule, OCR outlines specific actions covered entities must take to signal their compliance with these nondiscrimination requirements.

Effective July 18, 2016, the final rule has largely flown under the radar since its publication, begging the question: are covered entities prepared to comply with these new requirements? The deadline to implement changes applies to all covered entities, except health insurance or group health plans. As this July 18, 2016, date approaches rapidly, covered entities should understand the final rule's key provisions and the changes they must make to ensure their health programs and activities are in compliance.

What qualifies as discrimination on the basis of sex?

Core to the final rule, covered entities are prohibited from discriminating on the basis of sex. 45 C.F.R. § 92.206. This means that covered entities cannot: discriminate on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery; discriminate on the basis of childbirth or related medical conditions; discriminate on the basis of gender identity; or, sex stereotype. § 92.4. They must treat individuals consistent with their gender identity; however, a covered entity cannot deny a transgender individual access to a service that is consistent with, and only available to, individuals of his or her assigned gender at birth. § 92.206. Further, sex-specific health programs and activities may only be operated with an "exceedingly persuasive justification." § 92.101(b)(3)(iv). In other words, the sex-based restrictions must be substantially related to achieving an important health-related or scientific purpose. While these requirements generally do not apply in the case of employment, the final rule does highlight instances in which employers may be liable for discrimination against employees in health benefit programs. § 92.101(2); § 92.208.

How must covered entities grant meaningful access to individuals with limited English proficiency?

To be in compliance, covered entities must grant reasonable meaningful access to individuals with limited English proficiency, which includes document translation and oral interpretation. § 92.201(a); § 92.8(3). Language assistance services must be free, accurate, and timely, while maintaining the individual's independence. § 92.201(c).

Covered entities may not require individuals to provide their own interpreters. § 92.201(e)(1). Cutting corners by relying on adults accompanying limited-English proficiency as interpreters will not get covered entities far; the final rule strictly prohibits doing so, except in the event of an emergency or specific request. § 92.201(e)(2). Neither may covered entities rely on interpretation by minor children—again, except in the event of an emergency. § 92.201(e)(3).

What other requirements should covered entities know about?

Among other accessibility requirements for individuals with disabilities, recipients and state-based Marketplaces should be ready to provide auxiliary aids and services to individuals with impaired sensory, manual, or speaking skills. § 92.202(b). And, similar to the rule's language assistance requirements, those accommodations must be timely and free of charge. § 92.8(a)(2).

Grievance procedures are also key to compliance. Covered entities with 15 or more employees must adopt grievance procedures for prompt and equitable resolution of section 1557 violations. § 92.7(b). Entities should identify one employee to investigate these grievances and to generally ensure compliance with the final rule's requirements. § 92.7(a).

What steps must covered entities take to comply with these regulations?

Perhaps some of the largest changes covered entities will need to make involve how they communicate their nondiscriminatory practices; posting about nondiscriminatory practices and the availability of language and disability assistance services is critical. §92.8(f)(1). Covered entities must actively notify beneficiaries, enrollees, applicants, and other individuals:

  • That their programs and activities do not discriminate on the basis of race, color, national origin, sex, age, or disability
  • That they provide free auxiliary aids and services, including qualified interpretation and information in alternative formats
  • That they provide free language assistance services, including document translation and oral interpretation
  • How to obtain necessary auxiliary aids and services, and language assistance
  • How to file a complaint with the HHS Office of Civil Rights ("OCR")
  • Of the availability of grievance procedures, how to file a grievance, and the individual responsible for nondiscrimination compliance

If health programs and activities are receiving federal financial assistance, they must post the above information in significant publications and communications, in conspicuous public locations, and in an apparent website location accessible from the home page. § 92.8(d)(1)-(f)(1). As part of ensuring meaningful access for individuals with limited English proficiency, covered entities must also post taglines indicating the availability of free language assistance services in the top 15 languages spoken in their state. § 92.8(d)(1). While the final rule's nondiscrimination, language and disability assistance, and grievance procedure requirements become effective July 18, 2016, covered entities have a bit more time before they are required to meet these notice requirements. But, within 90 days of the effective date, entities should be sure they have appropriately posted the notices and taglines required.

Small-size communications and publications are not exempt from posting requirements, though covered entities may limit the amount of information expressed. Comments on the proposed rule highlighted the impracticability of including all of the above information in significant publications and communications that are small in size. As a result, covered entities are only required to post a modified amount of information: the bases on which they do not discriminate, as well as taglines in the top two languages spoken by limited English proficiency individuals. § 92.8(g).

What resources are available to help covered entities comply with these regulations?

To help programs and activities receiving federal financial assistance to comply, OCR has issued Frequently Asked Questions on section 1557 in a guidance document that addresses the scope of the rule and practical questions. OCR has also included a sample notice informing individuals of the nondiscrimination and accessibility requirements, a sample tagline, and a sample grievance procedure in the appendixes of the final rule. Translated versions of the sample notice and tagline are also available.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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