United States: Deadline Looms For Healthcare Providers To Comply With New ACA Non-Discrimination Requirements

Last Updated: October 3 2016
Article by Steven D. Gravely and Erin S. Whaley

No later than October 16, 2016, all healthcare programs and activities, regardless of size, must comply with sweeping new civil rights protections for patients. Everyone knows that the Affordable Care Act (ACA) expanded access to healthcare services and health insurance for millions of Americans. Less well known is that the ACA also expanded the non-discrimination provisions of existing federal laws to any health program or activity that receives any federal funds. This includes nearly every healthcare provider and health insurer.

Section 1557 of the ACA requires health programs or activities to make special provisions for persons with limited English proficiency, language disabilities and equal access on the basis of sex. It applies to healthcare providers and insurers regardless of their number of employees. Generally, current federal non-discrimination laws only apply to private sector businesses that employ 15 or more employees. This means that many small medical practices, and other healthcare providers or suppliers, with fewer than 15 employees are now required to take steps to comply with the Section 1557 requirements to provide equal access to their facilities and services regardless of the patient's gender identification, English language proficiency or language disability.

Gender Identification: An individual who gender identifies with a sex different than the one assigned to them at birth or by their health records or other records is entitled to be treated on the basis of that individual's gender identification and not their gender of record. The Office of Civil Rights (OCR)1 stated, in comments to the final regulations, that an individual who identifies as a transgender male cannot be denied treatment of ovarian cancer if medically indicated. OCR noted, however, that Section 1557 does not require a healthcare provider to provide a prostate exam to a patient who does not have a prostate even if the patient gender identifies as a male. In the final regulations, OCR "clarified" that Section 1557 protects individuals who have "non-binary" gender identification (meaning that an individual does not identify as either male or female). Healthcare programs and activities must provide equal access to their program, services and facilities to individuals who identify as neither male nor female.

Limited English Proficiency: The final regulations state that the federal government must assure that no one is left behind when it comes to health programs and activities because they cannot speak English. OCR states that effective communication is essential to "patient centeredness," which is a core component of quality healthcare. An individual with limited English proficiency is entitled to "language assistance services" to assure that the individual can communicate with the healthcare provider and others. These services include a "qualified interpreter" and a "qualified translator," which must be provided free of charge, be accurate and timely and must protect the confidentiality of patient information. The covered entity cannot require the patient to bring his or her own interpreter and cannot use a minor child to act as the interpreter.

Language Disabilities: Section 1557 requires health programs and activities to assure equal access to services to those who suffer language disabilities. The regulations extend the Americans with Disabilities Act Title II requirements to any health program or activity that receives federal funding. OCR acknowledges that the Title II requirements are greater than the ADA requirements currently applicable to these organizations. Regardless of the number of employees, these programs and activities must provide ADA approved auxiliary aids and services to individuals with impaired sensory, manual or speaking skills.

Electronic and Information Technology: The electronic and health information technology of health programs and activities must be accessible to individuals with disabilities consistent with Section 508 of the ADA. OCR stated that this includes patient portals, online scheduling and electronic billing as well as the direct care delivery.

Employee Benefit Plans: Section 1557 imposes several new and important requirements for employee benefit plans that will go into effect for the plan year beginning January 1, 2017. For additional information, please refer to our e-alert on this issue here.

So, what must health programs and activities be doing now? No later than October 16, 2016, these organizations must:

  • Post a notice of its compliance with Section 1557 that tracks the required content in the regulations: OCR has provided a sample notice for businesses to consider, which is available here.
  • Post a non-discrimination statement: OCR has provided a sample statement for businesses to consider using in significant publications and communications, which is available here.
  • Post tag-lines in at least the top 15 languages spoken in the state(s) served by the health program or activity of the notice required by Section 1557. Post tag-lines in at least the top two languages spoken in the state(s) served by the health program or activity of the non-discrimination statement required by Section 1557. OCR provided a sample tag line, which is available here.
  • Ensure that your programs and activities are compliant with the Section 1557 non-discrimination requirements (e.g. scheduling portal is Section 508 compliant, an interpreter is available as needed, ADA auxiliary aids are available).
  • For covered entities with 15 or more employees, designate an employee to serve as the Section 1557 compliance officer and adopt grievance procedures that provide due process for the prompt resolution of any alleged violations of Section 1557. A sample grievance procedure is available here.

If your organization has not prepared the notices and statements, the examples provided by OCR are a helpful resource. If you need additional assistance preparing the required notices and statements or evaluating the steps you need to take to come into compliance with the non-discrimination requirements, we are happy to assist you.

Footnotes

1 Section 1557 uses the term Covered Entity and is enforced by OCR. This is confusingly similar to the language used in HIPAA; however, Section 1557 and HIPAA are distinct and unrelated.

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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