Section 1557 of the Patient Protection and Affordable Care Act (ACA) and Regulations Issued by the U.S. Department of Health and Human Services (HHS)

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Section 1557 of the Patient Protection and Affordable Care Act (ACA) and Regulations Issued by the U.S. Department of Health and Human Services (HHS) - Donald R.

1 Section 1557 of the Patient Protection and Affordable Care Act (ACA) and Regulations Issued by the U.S. Department of Health and Human Services (HHS) - Donald R. Moy Statute: Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health care programs. The statute applies to any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or any program or activity that is administered by any Federal agency. The statute requires the Department of Health and Human Services (HHS) to issue regulations. Final Regulations were issued by HHS on May 18, 2016, which became effective on July 18, The regulations are provided at 45 CFR Part 92; Federal Register May 18, 2016; pages Applicability of the Regulations While the statute recognizes that section 1557 itself applies to health programs and activities receiving Federal financial assistance from other Federal agencies, the HHS regulations limit the applicability of the regulations to health programs and activities receiving Federal financial assistance provided or made available by HHS. In its preamble, HHS stated that it declines to extend the HHS regulations to health programs and activities receiving Federal financial assistance from other federal departments. However, HHS states other federal departments will enforce section 1557 with respect to their federally assisted health programs and activities. The Office of Civil Rights (OCR) of HHS has issued a memorandum encouraging coordination of enforcement responsibilities under section 1557 to all Federal departments. Federal financial assistance is defined to include any grant, loan, credit, subsidy, contract (other than a procurement contract but including a contract of insurance) or any other arrangement by which the Federal government provides or otherwise makes available assistance in the form of: 1

2 (i) funds; (ii) Service of Federal personnel; (iii) Real and personal property or any interest in or use of such property In the preamble to the regulations, Federal Register May 18, 2016, at page 31383, HHS states, consistent with OCR s enforcement of other civil rights authorities, Federal financial assistance does not include Medicare Part B. However, payment for Medicaid services is considered to be Federal financial assistance. Any insurer that participates in the Health Insurance Marketplace is considered to be a recipient of Federal financial assistance (because eligible individuals receive premium tax credits and advance payments of premium tax credits and cost sharing reductions to ensure affordability). A physician or health care provider that contracts with an insurer that participates in the Health Insurance Marketplace does not become a recipient of Federal financial assistance by virtue of the contract with the insurer. However, even if the physician does not independently receive Federal financial assistance the health insurer has a duty to ensure that its network providers comply with the antidiscrimination provisions with respect to the treatment of its enrollees. Federal financial assistance includes any financial assistance that HHS provides or otherwise makes available, including Federal financial assistance that HHS plays a role in providing or administering, including all tax credits under Title I of the ACA. HHS has a role in administering tax credits under Title I of the ACA, but does not have the primary responsibility for administering the tax credit. However, because HHS has a role in administering the tax credit, the tax credit is considered to be Federal financial assistance within the meaning of the regulations. Health program or activity means the provision or administration of health-related services or health-related insurance coverage. Section 1557 applies to any entity if any part of the health program or activity receives Federal financial assistance. In other words: If any part of a health care entity receives Federal financial assistance, then all of its programs and activities are subject to the discrimination provision. In estimating the number of physician covered by the regulations, in the preamble to the regulations HHS stated that the following physicians are deemed to be recipients of Federal financial assistance: Physicians receiving Federal financial assistance through Medicaid payments, meaningful use payments, and other sources, but not Medicare Part B payments, as the Department does not consider Medicare Part B payments to physicians to be Federal financial assistance. The Medicare Access and CHIP Reauthorization Act amended Section 1848 of the 2

3 Act to sunset meaningful use payment adjustments for Medicare physicians after the 2018 payment adjustment. In the proposed rule, we estimated that the regulation would likely cover almost all licensed physicians because they accept Federal financial assistance from sources other than Medicare Part B. We noted that most physicians participate in more than one Federal, State or local health program that receives Federal financial assistance, and many practice in several different settings, e.g. they may practice in a hospital but also practice privately and develop nursing home plans of care at the local nursing home. We noted that although we have data, by program, for the number of physicians receiving payment from each program, there is no single, unduplicated count of physicians across multiple programs. In the proposed rule, we provided our best estimate of the number of physicians receiving Federal financial assistance by analyzing and comparing different data sources and drawing conclusions from this analysis. We noted that, based on 2010 Medicaid Statistical Information System, data, about 614,000 physicians accept Medicaid payments and are covered under Section 1557 as a result. This figure represents about 72% of licensed physicians in the United States when compared to the 850,000 in In addition, we note that physicians receiving Federal payments from non-part B Medicare sources would also come under Section 1557 (Federal Register, May 18, 2016 at p ) Examples of Federal financial assistance identified by HHS include: National Health Service Corps HRSA funded community centers Programs receiving National Institutes of Health (NIH) research grants SAMHSA funded programs Physicians participating in CMS gain-sharing demonstration project. I. Notice Requirement Section Effective within 90 days of effective date of regulation. Each covered entity must meet notice requirement of section 92.8 to take appropriate initial continuing steps to notify individuals 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. The notice must include all the information required in section 92.8 paragraphs (a)(i) through (7). The website of OCR provides Translated Resources for Covered Entities that includes: Notice of Nondiscrimination Statement of Nondiscrimination Taglines 3

4 Notice of Nondiscrimination All components of 92.8(a)(1) through (7) must be included. Section 92.8(h) provides that covered entities may combine the content of the required Notice of Nondiscrimination with the content of other notices, such as notices required under other laws. OCR stated that covered entities have flexibility in determining the exact size and location of notices and taglines as long as such notices and taglines clearly convey the information required by section The term taglines is defined as short statements written in non-english languages that indicate the availability of language assistance free of charge. Among the section 92.8 Notice requirements, a covered entity must post taglines in at least the top 15 languages in the State spoken by individuals with limited English proficiency. a. Significant Publication and Significant Communication The Notice of Nondiscrimination and 15 taglines must be included in a covered entity s significant publications and significant communications. The term significant publications and significant communications means communications or publications that are targeted to beneficiaries, enrollees, applicants or members of the public. Examples provided by HHS include patient handbooks, outreach publications, written notices requiring a response from an individual, and a covered entity s website. A covered entity is not required to distribute significant publications or significant communications, but if it does, the publication must include the Notice of Nondiscrimination and 15 taglines. HHS stated that a covered entity will be allowed to exhaust its current stock of hard copy publications. New stock must be updated to include the required Notice of Nondiscrimination and 15 taglines. With respect to a covered entity s website, the home page may include a link in a conspicuous location on the home page that directs the individual to the Notice of Nondiscrimination and 15 taglines. HHS stated that it declines to provide a list of significant publications and communications, but stated that the term includes documents intended for the public, such as outreach, education and marketing materials. b. Small sized significant publications and communications Examples include tri-fold brochures, pamphlets and postcards. In lieu of the more detailed Notice of Nondiscrimination, a covered entity must include a Statement of Nondiscrimination and taglines in at least the top 2 languages spoken by individuals with limited English proficiency in the state. 4

5 Covered Entities that operate in more than one state A covered Entity that operates in more than one state is not required to tailor the taglines for each specific state, but may aggregate the number of individuals with limited English proficiency in the states the covered entity operates. II. Designation of Responsible Employee Section 92.1 Each covered entity that employs 15 or more persons must designate at least one employee to coordinate efforts to comply with Section 1557, including investigating any grievances. Each covered entity that employs 15 or more persons must adopt a grievance procedure that provides a prompt and equitable resolution of grievances alleging any violation of Section Appendix C to Part 92 provides a Sample Grievance Procedure. III. Limited English Proficiency (LEP) Section A covered entity must offer a qualified interpreter to an individual with LEP when oral interpretation is a reasonably necessary step to provide reasonable access Language assistive service must be provided free of charge, accurate and timely, and protect privacy May not require individual to provide his/her own interpreter May not require individual to bring family member to provide interpreter services, except: (i) (ii) (iii) Emergency, involving imminent threat to safety or welfare of individual, CE there is no qualified interpreter available LEP individual may specifically request to be accompanied by adult to facilitate communication. In emergency, a minor child may facilitate communication where qualified interpreter is not available Qualified interpreter No certification requirement, but must be proficient in the necessary specialized vocabulary and terminology. CE may rely on qualified bilingual/multilingual staff to communicate with LEP persons. Video Remote Interpreting Services A covered entity may use a VRI service that is: 1.) Real time, full motion video and audio over a dedicated high-speed, wide-bandwidth video or wireless connection 5

6 2.) A sharply delineated image that is large enough to display the interpreter s face and the participating individuals face. IV. Effective Communication for Individuals with Disabilities Section The HHS regulations incorporate the effective communications requirements under title II of the Americans with Disabilities Act (ADA). Medical practices are covered under Title III of the ADA. Title II of the ADA applies to state and local governments. Title II and III of the ADA have similar requirements pertaining to effective communication. Both require effective communication with persons who have disabilities, including the requirement to provide auxiliary aid where necessary to ensure effective communication. While Title II and Title III are similar, there is a slight difference. Under Title III of the ADA, the public accommodation must consult with the individual to determine what type of auxiliary aid is effective, but the public accommodation ultimately decides the type of auxiliary aid. Under Title II, the public entity must give the individual an opportunity to request an auxiliary aid, and must give primary consideration to the expressed choice of the individual unless the public entity can demonstrate another effective means of communication exists, or the auxiliary aid chosen by the individual is not required. HHS stated that it determined to require covered parties to be subject to the Title II effective communication requirements in lieu of the Title III requirements (As a practical matter, the requirements are substantively similar). V. Accessibility Standards for Buildings and Facilities Section Each facility or part of a facility in which health care programs or activities are conducted that is constructed or altered by, or on behalf of, or for the use of a covered entity must comply with the 2010 ADA Standards for Accessible Design as defined in ADA Title II Regulations if the construction or alteration was commenced on or after July 18, Some commenters urged that since many medical practices are already subject to ADA Title III requirements, it is unreasonable and confusing to require medical practices that are subject to ADA Title III standards to now be subject to Title II standards. HHS stated however that recipients of federal financial assistance should be held to ADA Title II standards. Comment: Medical practice needs to consult architect familiar with ADA Title II and Title III accessibility standards as part of planning construction or alterations. VI. Accessibility of Electronic and Information Technology Section Covered entities must ensure that their health programs or activities provided through electronic and information technology are accessible to individuals with disabilities, unless doing so would result in undue financial and administrative burdens. E.g. online appointment system 6

7 When a covered medical practice choses to provide a health program or activity through electronic and information technology, the entity must ensure that the technology is accessible as necessary for individuals with disabilities to have equal access to the health program or activity. e.g. medical office adopts online portal for patients to make appointments or fill out required documentation required of new patients. In this case, a blind patient may need assistance to provide information, such as medical history, illnesses, medications, etc. VII. Requirement to Make Reasonable Modifications Section Covered entities must make modifications in policies, practices, or procedures when necessary to avoid discrimination on the basis of disability. VIII. Equal Access on the Basis of Sex Section A covered entity must provide equal access without discrimination of the basis of sex, and must treat individuals consistent with their gender identity. e.g. A medical practice may not deny, based on an individual s identification as a transgender male, treatment for ovarian cancer where the treatment is medically indicated. For health services that are appropriately provided to an individual, the covered entity must provide for those services on the same terms regardless of the individual s sex assigned at birth or gender identity. The OCR states that the regulations should not impose substantial costs because most of the requirements have been covered in other federal civil rights laws, such as the ADA, for many years. For more information go to the Office of Civil Rights of the Department of Health and Human Services: Attachments Sample Notice of Non Discrimination Sample Nondiscrimination Statement Sample Tagline Page 1 of Language Assistive Services providing Taglines in different languages Presenter s Guide 7

ACA Section 1557 Compliance: What it is, What it Does and What You Need to Know. Presented by: Anne M. Ruff

ACA Section 1557 Compliance: What it is, What it Does and What You Need to Know Presented by: Anne M. Ruff 317.977.1450 aruff@hallrender.com What is Section 1557 Who is Subject to Section 1557 What You