United States: Nondiscrimination Final Rule Under The ACA Imposes New Requirements On Hospice Agencies

Last Updated: September 20 2016
Article by Iain M. Stauffer

On May 26, 2016, the United States Department of Health and Human Services (HHS), Office of Civil Rights (OCR), issued the "Nondiscrimination in Health Programs and Activities" final rule, implementing Section 1557 of the Affordable Care Act (ACA). Generally, Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs or activities. The final rule provides guidance to covered entities regarding their legal obligations under Section 1557 and educates consumers about their rights. With certain exceptions, this rule became effective July 18, 2016. Has your agency taken the necessary steps to ensure compliance?

Who is Covered by this Rule?

This rule applies to all entities operating health programs or activities that receive federal financial assistance from HHS, health programs or activities administered by HHS, the Health Insurance marketplaces and the plans offered by issuers that participate in the Marketplaces. The rule refers to these as "covered entities." While federal financial assistance includes Medicaid and Medicare Parts A, C, and D, it does not include payments made under Medicare Part B. Covered entities can include hospitals, health clinics, physicians' practices, community health centers, nursing homes, rehabilitation centers, health insurance issuers, and state Medicaid agencies.

What Does the Final Rule Cover?

Section 1557 builds on existing and long-standing federal civil rights laws and nondiscrimination regulations. This final rule "clarifies and codifies" existing nondiscrimination requirements and provides new protections prohibiting discrimination on the basis of sex in health programs and activities. Generally, an individual shall not, on the basis of race, color, national origin, sex, age, or disability be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any covered entity.

The final rule sets out requirements in the following areas: meaningful access for individuals with limited English proficiency (LEP); effective communication for individuals with disabilities; accessibility standards for buildings and facilities; accessibility of electronic and information technology; reasonable accommodations; equal program access on the basis of sex; nondiscrimination in health-related insurance and coverage; employer liability for discrimination in employee health benefit programs; and nondiscrimination on the basis of association.

Responsible Employee and Grievance Procedure

If a covered entity has 15 or more employees, the entity must designate a responsible employee to coordinate the entity's efforts to comply with and carry out the responsibilities of Section 1557 and this final rule, which include investigating grievances.

Covered entities with 15 or more employees must also adopt a grievance procedure that incorporates due process standards and provides for a prompt and equitable resolution of grievances. Appendix C of the final rule provides a model grievance procedure covered entities may use. Also, if a covered entity has an existing grievance procedure, the entity may combine it with the grievance procedure required by this rule.

Notice Requirements

The final rule imposes new mandatory notice requirements for all covered entities to notify beneficiaries, enrollees, applicants, and the public. Covered entities must comply with the final rule notice requirements by October 16, 2016. The required notice must contain the following:

  • 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;
  • That the covered entity provides appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternative formats, free of charge and in a timely manner, when such aids and services are necessary to ensure individuals with disabilities have an equal opportunity to participate;
  • That the covered entity provides language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner, when such services are necessary to provide meaningful access to individuals with LEP;
  • How to obtain the aids and services;
  • The identification of and contact information for the designated responsible employee, if applicable;
  • The availability of the covered entity's grievance policy and how to file a grievance, if applicable; and
  • How to file a discrimination complaint with the HHS OCR.

This notice must be posted in a conspicuous font size in conspicuous physical locations where the covered entity interacts with the public; in a conspicuous location on the covered entity's website, accessible from the home page of the covered entity's website; and in significant publications and communications targeted to beneficiaries, enrollees, applicants, and members of the public. The publications and communications contemplated by the rule would likely include outreach, education, marketing materials, patient handbooks, notices requiring a response, and notices pertaining to rights and benefits. Along with the notice, the covered entity must post taglines in at least the top 15 languages spoken by individuals with LEP in North Carolina. A tagline is a short statement written in non-English languages that indicates the availability of language assistance services free of charge. The HHS website contains a sample and translated versions of a notice of nondiscrimination, statement of nondiscrimination, and taglines for covered entities.

Significant publications and communications that are small-size postcards and tri-fold brochures, for example, need only contain an abbreviated nondiscrimination statement and taglines in at least the top two languages spoken by individuals with LEP in North Carolina. Appendix A of the final rule contains samples of the notice and nondiscrimination statement covered entities may use.

Enforcement

The final rule also includes potential enforcement mechanisms. It authorizes lawsuits by aggrieved individuals to challenge alleged violations of Section 1557 and also provides for compensatory damages. In addition, the OCR can enforce Section 1557 through informal means—denying, suspending, or terminating federal financial assistance—or refer the matter to the United States Department of Justice.

What Should a Provider Do?

If covered entities have not already done so, they need to review their policies and procedures to ensure they comply with the nondiscrimination provisions of the final rule. In addition, covered entities with 15 or more employees need to verify they have designated a responsible employee and adopted a grievance procedure. All covered entities need to prepare their notices and taglines to ensure compliance with the posting requirements by the October 16, 2016 deadline. Covered entities should consult with counsel for a detailed review of the nondiscrimination rule, to resolve questions, and to discuss its specific requirements and applicability in order to achieve compliance with Section 1557 and this final rule.

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.

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Iain M. Stauffer
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