Immediate Action Required by Health Care Providers to Comply With Section 1557 of the Affordable Care Act

On May 18, 2016, the U.S. Department of Health and Human Services (“HHS”) Office of Civil Rights (“OCR”) issued the Final Rule implementing the prohibition of discrimination under Section 1557 of the Affordable Care Act (ACA) of 2010.

Under Section 1557, individuals are protected from discrimination in health care on the basis of race, color, national origin, age, disability, and sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.

Though Section 1557 has been in effect since the enactment of the ACA in 2010 and the HHS Office for Civil Rights (OCR) has been enforcing the provision since it was enacted, the Final Rule explains consumer rights under the law and provides additional clarification on enforcement and administrative remedies. In addition, it further defined who is considered a covered entity and their obligations.

The Final Rule applies to those who provide or administer health-related services or insurance coverage and receive “federal financial assistance,” which includes Medicare (except for Part B), Medicare Advantage Plans, Medicaid, Children’s Health Insurance Fund (CHIP) and receive meaningful use payments.

Under the Final Rule, all covered practices are required to “take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served.”

Section 1557 also states that “access services must be provided free of charge” and health care providers are expected to treat the costs of providing auxiliary aids and services as part of the annual overhead costs of operating a business.

Though doctors can claim a tax credit of up to 50 percent for eligible access expenditures over $250, but less than $10,250, the total amount is limited to $5,000 per tax year.

Eligible access expenditures include the costs of:

  1. Qualified interpreters (Meaning an interpreter who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary)
  2. Note takers
  3. Transcription services
  4. Written materials
  5. Telephone handset amplifiers
  6. Assistive listening devices and listening systems
  7. Telephones compatible with hearing aids closed caption decoders, open and closed captioning
  8. Text telephones (TTYs)
  9. Videotext displays, or other effective methods of making aurally delivered materials available to the deaf or hard of hearing.

No one disagrees that there should be effective communication, but it seems unfair that physicians have to bear the total cost, which is estimated at $120 to $200 per visit, when reimbursement doesn’t come close to covering it.

Among other things, the Final Rule requires effected health care providers to include a non-discrimination notice and taglines in “significant publications” or “significant communications” targeted at patients or the public.

Though HHS does not specify which communications are considered significant, HHS does provide some examples such as patient handbooks, consent and complaint forms, initial patient paperwork, outreach publications, marketing materials and any notice “requiring a response from an individual” – which could include patient bills or notices to contact the practice to schedule an appointment. The notice/taglines can be part of the publication or a separate insert.

Additionally, taglines must be in at least the top 15 non-English languages spoken in the State in which the entity does business. For small sized communications such as postcards; the final rule requires entities to post a nondiscrimination statement and taglines in at least the top two non-English languages spoken by individuals with limited English proficiency in the State.

The provisions of the final rule became effective on July 18, 2016. In addition, the rule’s notice requirements, specifically the posting of a nondiscrimination notice and taglines are effective within 90 days of the effective date.

The Office for Civil Rights (OCR) is responsible for enforcing civil rights laws and complaints to OCR can result in investigations by HHS and the Department of Justice. In addition, an individual can sue you in civil court for a Section 1557 violation.

The director for the Office for Civil Rights, Jocelyn Samuels, sent a memorandum out to the U.S. Department of Health and Human Services stating, “I wanted to take this opportunity, as we reflect on the critical importance and impact of Federal civil rights laws and our role as public servants, in their vigorous enforcement, to underscore our authority and important responsibility to enforce Section 1557.”

Discrimination claims are not covered under traditional medical liability insurance and any judgments will come out of the doctors’ own pocket.

Steps Providers Should Take Immediately To Protect Themselves:

  1. Prepare and post all required “notice” communications and make sure websites are updated accordingly.
  2. Establish a means of providing required language support. This may require contracting with an outside vendor and/or addressing other forms of access to language support within the practice.
  3. Review all existing entity policies and/or create new policies, procedures addressing non-discrimination (including gender identity and gender transition) in health services, auxiliary aid, and language access requirements.
  4. Educate and train employees and staff. 
  5. Create and document a grievance procedure. 
  6. Submit an assurance of compliance form to OCR.

 

Again, remember that this applies only to practices which accept Medicare Advantage plans (Medicare Part A), Medicaid, Childrens Health Insurance Plans (CHIP), or have received Meaningful Use dollars.  This does not apply to Medicare Part B.