United States: HHS OCR Offers New Materials For Covered Entities To Promote Compliance With The Affordable Care Act's Nondiscrimination Provisions Now In Effect

Introduction

Hospitals, health clinics, health insurance issuers, State Medicaid agencies, community health centers, physician practices, home health care agencies and certain other health care and coverage providers are now subject to new specific compliance requirements under the Final Rule, Nondiscrimination in Health Programs and Activities (the "Final Rule"), which implements Section 1557 of the Patient Protection and Affordable Care Act ("Section 1557") with respect to federally funded health programs and activities. These requirements include:

  • designation of a compliance coordinator, 
  • adoption of grievance procedures, and 
  • compliance with information technology accessibility standards.

Additional obligations, including the conspicuous posting of nondiscrimination notices along with taglines for non-English language speakers, and compliance with certain buildings and facilities accessibility standards, will go into effect on a rolling basis over the next eighteen months.

A covered entity that fails to comply with, or acts in violation of, Section 1557 and its implementing regulations may be required to take corrective actions, including payment of compensatory damages.

Background

Enacted in 2010 as part of The Patient Protection and Affordable Care Act ("ACA"), Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability in certain health programs and activities. Specifically, Section 1557 provides that, with certain exceptions, "an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments)." According to HHS, Section 1557 is the first federal civil rights law to broadly prohibit discrimination on the basis of sex in federally funded health programs.

Section 1557 authorizes the Secretary of the U.S. Department of Health and Human Services ("HHS") to promulgate regulations implementing these nondiscrimination requirements. To that end, HHS Office for Civil Rights ("OCR") published a Request for Information on August 1, 2013, to solicit information from the public on issues arising under Section 1557, and then a proposed rule on September 8, 2015. While the Final Rule adopts the same structure as the proposed rule, OCR made several significant changes, including with respect to the scale of the notice requirements, the buildings and facilities accessibility standards and the religious exemption allowance, each discussed below. Not discussed below, but equally notable, is OCR's mandate that sex-specific health programs or activities are allowable only where the covered entity can demonstrate that the sex-specific program is substantially related to the achievement of an important health-related or scientific objective.

OCR received nearly 25,000 comments in response to the proposed rule. Although many commentators requested that OCR "categorically declare ... that certain actions are or are not discriminatory," OCR declined, stating that "[t]he determination of whether a certain practice is discriminatory typically requires a nuanced analysis that is fact-dependent." OCR also declined to adopt requests that compliance with language access standards promulgated by CMS or other federal and state agencies be deemed compliance with the Final Rule. OCR did, however, agree to "coordinate as appropriate with other federal agencies to avoid inconsistency and duplication in enforcement efforts" and "give consideration to an entity's compliance with the requirements of other Federal laws where those requirements overlap with Section 1557."

The Final Rule

OCR published the Final Rule on May 18, 2016. According to OCR's July 19 email alert, the Final Rule aims to strengthen protections for populations that have been most vulnerable to discrimination in the health care context. The Final Rule does this by broadly prohibiting discrimination on the basis of race, color, national origin, age, sex or disability under (i) every health program or activity, any part of which receives federal financial assistance provided or made available by HHS; (ii) every health program or activity administered by HHS (e.g., the Medicare Part D Program); and (iii) every health program or activity administered by a Title I entity (i.e., both federal- and state-facilitated Health Insurance Marketplaces as well as all plans offered by issuers that participate in those Marketplaces). The Final Rule also obligates "covered entities" to ensure their health programs and activities comply with these requirements. Under the Final Rule, "covered entities" are entities that operate or administer any of the above-referenced health programs or activities, including hospitals, health clinics, health insurance issuers, state Medicaid agencies, community health centers, physician practices and home health care agencies. HHS is also a covered entity under the Final Rule.

Importantly, if a covered entity is principally engaged in health services or health coverage, all of the entity's operations are considered part of the health program or activity, and therefore must comply with Section 1557 (e.g., a hospital's medical departments, as well as its cafeteria and gift shop).

Requirements

Compliance Coordinator and Grievance Procedures

Under the Final Rule, as of July 18, 2016, any covered entity with fifteen or more employees that receives federal financial assistance must designate at least one employee to coordinate the entity's compliance with Section 1557, and must implement grievance procedures to address complaints of discrimination. The Final Rule requires that such grievance procedures incorporate due process standards and provide for the "prompt and equitable resolution of grievances" alleging discrimination. On its website, OCR offers a model grievance procedure, which proposes timelines and procedures for filing, investigating, hearing and appealing a Section 1557 grievance. OCR also makes available on its website training materials, which OCR strongly encourages covered entities to use to train their employees on Section 1557 compliance.

Notice of Nondiscrimination and Taglines

Under the Final Rule, covered entities must take appropriate initial and continuing steps to notify beneficiaries, enrollees, applicants and the public generally that the covered entity does not discriminate on the basis of race, color, national origin, sex, age or disability in its health programs and activities, and, further, that the covered entity provides appropriate aids and services to ensure that individuals with disabilities have an equal opportunity to participate (e.g., large-print materials, text telephones, captioning, video remote interpreting services as appropriate). The notice must also provide information about how to access such services, whom within the entity to contact for more information, and how to file a grievance with the entity and report discrimination to OCR.

To that end, the Final Rule requires that, not later than October 17, 2016, each covered entity must post on its website, in its "significant publications and communications," and in conspicuous physical locations where the entity interacts with the public, a notice of nondiscrimination conveying this information, along with the required "taglines." A "tagline" is a short statement written in a non-English language that indicates the availability of language assistance services free of charge. With an entity's notice of nondiscrimination, the entity must include a tagline in at least each of the top 15 languages spoken by individuals of the relevant state(s) with limited English proficiency ("LEP").

For significant publications and communications that are small-sized (e.g., postcards and tri-fold brochures), the Final Rule requires covered entities to post a nondiscrimination statement along with taglines in at least the top two non-English languages spoken by LEP individuals in the state(s). OCR has prepared a model notice of nondiscrimination and a model nondiscrimination statement as well as taglines in 64 different languages. 

Access to Information Technology, Buildings and Facilities

In addition to promoting meaningful access to effective communication, the Final Rule requires covered entities to take steps to provide individuals with disabilities equal access to information technology, unless the steps would result in an undue financial burden or fundamentally alter the program. Under the Final Rule, covered entities must make all electronically provided health programs and activities accessible to individuals with disabilities.

Furthermore, consistent with existing directives implementing the requirements under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act of 1973, the Final Rule requires that any facility or part of a facility in which health programs or activities are conducted that is constructed or altered by or on behalf of, or for the use of, a recipient of federal financial assistance or state-based MarketplaceSM shall comply with the 2010 ADA Standards for Accessible Design ("2010 Standards"), as defined in the ADA Title II regulations.

Although covered entities must comply with the information technology accessibility requirements as of July 18, 2016, the time frame within which a covered entity must comply with the buildings and facilities accessibility requirements depends on the nature of the construction (existing versus new) as well as applicability of the 2010 Standards. Buildings and facilities not covered by the 2010 Standards have been granted an eighteen-month grace period (until January 18, 2018) to comply with the 2010 Standards.

Exceptions

Some issues are not covered by Section 1557. Employment discrimination is not covered under Section 1557 except in certain circumstances and for certain employers related to discrimination in employee health benefit programs. In addition, if the application of the Section 1557 requirement would violate applicable federal laws protecting religious freedom and conscience, application is not required. This is a substantial modification to the proposed rule, which sought comment on whether the rule should include its own exemption for religious organizations in circumstances in which nondiscrimination obligations conflict with religious beliefs.

Conclusion

The Final Rule imposes new compliance obligations on covered entities that may be substantial. For example, covered entities must update their policies and procedures to include grievance procedures; designate a compliance coordinator; and prepare, publish and distribute notices and statements of nondiscrimination. Covered entities must also implement policies and practices to ensure compliance with information technology and buildings and facilities accessibility standards. Covered entities are also encouraged to train their employees on Section 1557 compliance. According to OCR, the Final Rule accords with and does not broadly expand existing civil rights requirements and standards applicable to covered entities. In addition, OCR anticipates that implementation of the Final Rule will yield reductions in health disparities and increased access to health care, which, in turn, will contribute to an increase in health care coverage and an associated decrease in payments by the federal government for uncompensated care.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions