HHS Nondiscrimination Rule Includes New Notice Requirements for Providers
June 15, 2016 08:58 AM
The Department of Health and Human Services (HHS) has issued a final rule implementing the prohibition of discrimination under Section 1557 of the Affordable Care Act (ACA) of 2010. The Final Rule, Nondiscrimination in Health Programs and Activities, explains consumers’ rights under the law and adds certain requirements for covered entities in order to ensure nondiscrimination on the grounds of race, color, national origin, sex, age, or disability in certain health programs and activities. Entities covered under the rule are any health program or activity which receives funding from HHS; any health program that HHS itself administers; Health Insurance Marketplaces; and issuers that participate in those Marketplaces.
Section 1557 builds on longstanding and familiar Federal civil rights laws: Title VI of the Civil Rights Act of 1964 (Title VI), Title IX of the Education Amendments of 1972 (Title IX), Section 504 of the Rehabilitation Act of 1973 (Section 504), and the Age Discrimination Act of 1975 (Age Act). Most notably, Section 1557 is the first Federal civil rights law to prohibit discrimination on the basis of sex in all health programs, including discrimination based on pregnancy, gender identity, and sex stereotyping.
For individuals with disabilities, the final rule requires covered entities to make all programs and activities provided through electronic and information technology accessible; to ensure the physical accessibility of newly constructed or altered facilities; and to provide appropriate auxiliary aids and services for individuals with disabilities. Covered entities are also prohibited from using marketing practices or benefit designs that discriminate on the basis of disability and other prohibited bases.
Under the rule, covered entities are required to take reasonable steps to provide meaningful access to each individual with limited English proficiency (LEP). In addition, covered entities are encouraged to develop and implement a language access plan.
The final rule requires covered entities to post in a conspicuous location a notice of individual rights related to nondiscrimination with taglines for, at least, the top 15 non-English languages spoken in the State in which the entity is located or does business. The notice may be in English and must contain information that alerts LEP individuals to the availability of language assistance services. Covered entities must also include the notice, along with the taglines, in significant publications targeted at patients such as, patient handbooks or notices pertaining to patient rights. The same notice and taglines must also be in a conspicuous location on the covered entity’s Web site accessible from the home page.
Additional protections for individuals with LEP include prohibitions for covered entities to use low-quality video remote interpreting services or rely on unqualified staff, translators when providing language assistance services.
Covered entities with 15 or more employees must have a grievance procedure and a designated compliance coordinator.
To reduce burden and costs for covered entities, the Office of Civil Rights has a sample notice and taglines in over 60 languages. In addition, the final rule includes an Appendixthat provides a model grievance procedure.
On the CMS web site for Consumer Information and Insurance Oversightis a listif the top 15 non-English languages by state.
The final rule takes effect July 18, 2016. One exception, however, is the notice requirements, which is effective 90 days from the effective date for the rule. Therefore, agencies have some time to come into compliance with the new OCR nondiscrimination requirements.