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

Transcription

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

2 What is Section 1557 Who is Subject to Section 1557 What You Need to Do and When Key Components of the Rule Overview Protecting Individuals Against Sex Discrimination Ensuring Meaningful Access for Individuals with Limited English Proficiency Ensuring Effective Communication with and Accessibility for Individuals with Disabilities Coverage of Health Insurance in Marketplaces and other Health Plans 2

3 What is Section 1557? Section 1557 is part of the Affordable Care Act Final Rule implementing Section 1557 issued on May 13, 2016 by the Office of Civil Rights (OCR) of the Department of Health and Human Services (HHS) Provides that an individual shall not, on the basis of race, color, national origin, sex, age or disability, be excluded from participation in, denied the benefits of or subjected to discrimination under any health program or activity that receives Federal financial assistance 3

4 What is New Here? There is overlap with existing non-discrimination regulations Section 504 of the Rehabilitation Act (disability) Title VI of the Civil Rights Act of 1964 (race, color, national origin) Title IX of the Education Amendments of 1972 (sex) Age Discrimination Act of 1975 First federal civil rights law to broadly prohibit discrimination on the basis of sex in federally funded health programs. Definition of sex has been broadly defined to include gender identity. 4

5 5 Who is Subject to Section 1557? Health programs and activities that receive Federal Financial Assistance from HHS. Health program and activities is defined as the provision or administration of health related services, health-related insurance coverage, or other health related coverage, and the provision of assistance to individuals in obtaining health-related services or healthrelated insurance coverage. Federal Financial Assistance includes grants, property, Medicaid, Medicare Parts A, C and D Payments, Meaningful Use Payments. Any health program that HHS itself administers. Health Insurance Marketplaces and issuers that participate in the Marketplaces.

6 Who is Subject to Section 1557? Where an entity is principally engaged in health services or health coverage, ALL of the entity s operations are considered part of the health program or activity, and must be in compliance with Section 1557 (e.g., a hospital s medical departments, as well as its cafeteria and gift shop). HHS believes the follow entities are likely to be covered: hospitals, skilled nursing facilities, ambulatory surgical centers, home health agencies, hospices, federally qualified health centers, rural health clinics, physician practices, laboratories, pharmacies, outpatient rehabilitation facilities, ESRD dialysis centers, State Medicaid agencies. 6

7 Is Anyone Safe? Does not include Medicare Part B payments. Physicians receiving only Medicare Part B payments are not subject to the Final Rule. However, per HHS, "because almost all physicians receive payments from other [HHS] programs such as Medicaid or Medicare meaningful use payments, we believe that there are very few physicians excluded from these provisions. The rule does not apply to employment practices such as hiring or firing, except that covered employers are responsible for their employee health benefit programs in certain circumstances. 7

8 Enforcement Violations and failure to address noncompliance may result in suspension or loss of federal funding. In addition, individuals may bring individual or class action claims directly against Covered Entities in federal court. Comments in the Final Rule indicate that remedies in these lawsuits could include compensatory damages and awards of attorneys' fees and costs. 8

9 What do you need to do and when? Requirement Information Compliance Deadline Grievance Procedure If you have 15 or more employees, you must adopt a grievance procedure to investigate and address any alleged noncompliance July 18, 2016 Compliance Coordinator Non-Discrimination and Available Services Notice Taglines Health Plan Updates 9 If you have 15 or more employees you must designate at least one (1) employee to coordinate 1557 compliance July 18, 2016 Sample language provided by HHS October 16, 2016 Top 15 languages spoken in the State or States in which Covered Entity is located Ensure coverage complies with non-discrimination requirements October 16, 2016 First day of plan year beginning on or after January 1, 2017

10 1557 Coordinator and Grievance Procedure The Final Rule requires that each Covered Entity with fifteen (15) or more employees must: Designate at least one (1) employee to coordinate the Covered Entity's compliance with the Section 1557 requirements; and Adopt a grievance procedure to investigate and address any alleged noncompliance. 10

11 1557 Coordinator and Grievance Procedure Questions 11 Can we combine the 1557 coordinator position with another position? Yes. OCR states a covered entity that has already designated a responsible employee pursuant to the regulations implementing Section 504 or Title IX may use that individual to coordinate its efforts to comply with Section Can we combine the grievance procedure with an existing one? Yes. We recommend your Section 504 grievance procedure. OCR said We noted that a covered entity that already has a grievance procedure addressing claims of disability discrimination that meets the standards established under the Section 504 regulation may use that procedure to address disability claims under Section In addition, we noted that covered entities may use that procedure to address all other Section 1557 claims, provided that the entity modifies the procedure to apply to race, color, national origin, sex, and age discrimination claims.

12 Notice of Non-Discrimination and Accessibility Covered Entities must provide notice to "beneficiaries, enrollees, applicants and members of the public" of its non-discrimination and available services. The notice must contain the following statements: Covered Entity does not discriminate on the basis of race, color, national origin, sex, age or disability in its health programs and activities. 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 the aids and services are necessary to ensure equal opportunity to participate. 12

13 Notice of Non-Discrimination and Accessibility Covered Entity provides language assistance services, including translated documents and oral interpretation free of charge and in a timely manner when necessary to provide meaningful access to individuals with limited English proficiency ("LEP"). How individuals with disabilities and LEP can obtain the aids and services. Identification of and contact information for the Section 1557 Coordinator. The availability of the grievance procedure and how to file a grievance; and How to file a discrimination complaint with OCR. 13

14 Notice Questions Do we have to post/provide the Notice in the top 15 languages? No. The notice is only required to be provided in English. In the Proposed Rule, commenters recommended HHS require covered entities to post the notice in non-english languages. HHS declined to require posting the notice in any non-english languages. Although we encourage covered entities to post the notice of individuals rights in one or more of the most prevalent non-english languages frequently encountered by covered entities in their geographic service areas, we decline to require such posting in the final rule because of the resource burdens and opportunity costs to covered entities. 14

15 Taglines Section 1557 requires covered entities to post taglines in at least the top 15 languages spoken by individuals with limited English proficiency of the relevant State or States the covered entity operates in. Taglines are short statements written in non-english languages that indicate the availability of language assistance services free of charge. ATTENTION: If you speak [insert language], language assistance services, free of charge, are available to you. Call 1 xxx xxx xxxx (TTY: 1 xxx xxx xxxx). OCR translated taglines in 64 languages. 15

16 Tagline Questions Is there one list of top 15 languages we have to use? No. HHA chose not to include one with the Final Rule saying that there is no single correct resource for determining which language to use. HHS identified data sources that may be useful such as "data from the United States Census Bureau, particularly the American Community Survey; utilization data from the covered entity s files for individuals with limited English proficiency; data from State and local governments; school system data; data from community agencies and organizations; and data from refugee or immigrant serving agencies. I have a list of the top 15 languages for my state and there is a language that is very prevalent in my area that is not on the list. Do we have to do 16 languages then? 16 No. HHS wants to allow flexibility to covered entities to determine their top 15 saying that the covered entities are in the best position to determine what local or regional data sources are best suited to their needs to determine their top 15.

17 Tagline Questions I went to the HHS website for translated materials to get the taglines and they have translated much more than just the taglines. Do I have to post or provide the other materials they have translated (the nondiscrimination statement in the top 15 languages too? No. HHS stated in the Final Rule The translations of the sample notice and sample nondiscrimination statement are for covered entities discretionary use only the final rule does not require the posting of the notice or nondiscrimination statement in non-english languages. 17

18 Notice and Taglines: Where do they Go? At the facility conspicuous physical locations where the entity interacts with the public. Places like Registration, the ED, in clinic space. On your website In a conspicuous location on the covered entity's Web site accessible from the home page of the covered entity's Web site. The covered entity must provide a link for the notice and fifteen (15) links for the 15 taglines. The links for the taglines must be in that language on the homepage and, when clicked, take the individual to the full text of the tagline. HHS refers to this in the commentary as in language links. For instance, a tagline web link directing a Spanish-speaking individual with LEP to a Spanish-language tagline should appear as Española rather than Spanish. This means that each covered entity home page will have a total of 16 links. 18

19 Notice and Taglines: Where do they Go? In significant communications and significant publications targeted to beneficiaries, enrollees, applicants, and members of the public. HHS did not define or provide a list of what constitutes a significant publication or significant communication. HHS does specify. documents meant for the public as well as individual letters and notices; and provides examples may include patient handbooks, outreach publications or written notices pertaining to right or benefits or requiring a response from an individual. HHS intends to give covered entities flexibility in determining what is significant and how to incorporate the notice and taglines. 19

20 Notice and Taglines: Where do they Go? Small-sized significant communications and significant publications are not required to include the full notice and all 15 taglines. small sized documents are things like tri-fold brochures, pamphlets, and postcards. Small-sized significant communications and significant publications must include: the nondiscrimination statement from the notice. the taglines for the top 2 languages. 20

21 Notice and Taglines: Where do they Go? Where in the document do they need to be? Can the notice and taglines be separate documents rather than in the form? HHS intends to give covered entities flexibility. Although we encourage covered entities to include notices and taglines at the beginning of significant publications and significant communications to ensure that they are meaningfully accessible to the consumer, we decline to require this as part of the final rule. In some circumstances, such as lengthy publications, it may be necessary to include the notice and taglines at the beginning of a document to meet the requirements of in others, posting elsewhere, including on a separate insert accompanying the English-language significant publication or significant communication, may be adequate. 21

22 Protecting Individuals Against Sex Discrimination The prohibition on sex discrimination protects individuals from discrimination based on: An individual's sex; Pregnancy, childbirth and related medical conditions; Gender identity; and Sex stereotyping, including the stereotype that an individual must identify as either male or female. 22

23 Protecting Individuals Against Sex Discrimination Gender Identity: An individual's internal sense of gender, which may be male, female, neither or a combination of male and female, and which may be different from an individual's sex assigned at birth. The way an individual expresses gender identity is frequently called ''gender expression,'' and may or may not conform to social stereotypes associated with a particular gender. A transgender individual is an individual whose gender identity is different from the sex assigned to that individual at birth. 23

24 Protecting Individuals Against Sex Discrimination Individuals cannot be denied health care or health coverage based on their sex. Women must be treated equally with men in the health care they receive and the insurance they obtain. Categorical coverage exclusions or limitations for all health care services related to gender transition are discriminatory. Individuals must be treated consistent with their gender identity, including in access to facilities. However, providers may not deny or limit treatment for any health services that are ordinarily or exclusively available to individuals of one gender based on the fact that a person seeking such services identifies as belonging to another gender. Sex-specific health programs or activities are permissible only if the entity can demonstrate an exceedingly persuasive justification, that is, that the sex-specific health program or activity is substantially related to the achievement of an important health-related or scientific objective. While the final rule does not resolve whether discrimination on the basis of an individual's sexual orientation status alone is a form of sex discrimination under Section 1557, the rule makes clear that OCR will evaluate complaints that allege sex discrimination related to an individual s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under Section

25 Sex Discrimination Questions Do we need to allow transgender patients to use bathrooms consistent with their gender identity? What about room assignments? Individuals should be allowed to use the restrooms corresponding to their gender identity, and in the case of shared occupancy rooms, a patient should receive a room assignment consistent with that patient's gender identity. The Final Rule provides that individuals must be treated consistent with their gender identity, "including in access to facilities." We read this to include bathrooms and hospital wards. The Final Rule's intent is that individuals should be allowed to use the restrooms corresponding to their gender identity, and in the case of shared occupancy rooms, a patient should receive a room assignment consistent with that patient's gender identity. This is consistent with OCR Enforcement actions. Recently, a New York hospital entered into a resolution agreement with OCR after the hospital assigned a patient identifying as 25 a female to a double occupancy patient room with a male patient.

26 Ensuring Meaningful Access for Individuals with Limited English Proficiency ( LEP ) The prohibition on national origin discrimination requires covered entities to take reasonable steps to provide meaningful access to individuals with limited English proficiency who is eligible to be served or likely to be encountered within the entities health programs and activities. The Final Rule does not provide a list of requirements that must be met to in order to claim reasonable steps were taken. Instead, the Final Rule offers flexibility in that regard and states that evaluations of whether a Covered Entity has taken reasonable steps to provide meaningful access will be factspecific and will consider factors such as: (i) the importance of the program, activity and communication; and (ii) the operations and capacity of the Covered Entity. 26

27 Qualified Interpreters and Translators Qualified bilingual/multilingual staff" are a member of the Covered Entity's workforce who: Has been designated to provide oral language assistance as part of the individual's job responsibilities; Has demonstrated he/she is proficient in speaking and understanding both spoken English and at least one other spoken language, including any necessary specialized medical vocabulary or terminology; and Is able to effectively, accurately and impartially communicate directly with individuals with limited English proficiency ( LEP ) in their primary language. The Final Rule specifies an individual who may be qualified bilingual/multilingual staff is not necessarily qualified to interpret or translate for individuals with LEP, and there may be instances in which it would not be appropriate for qualified bilingual/multilingual staff to interpret if it could 27 create a conflict of interest.

28 Qualified Interpreters and Translators A "qualified interpreter" for an individual with LEP means an interpreter who (either remotely or on site): Adheres to generally accepted translator ethics, including confidentiality; Has demonstrated proficiency in writing and understanding both written English and at least one other written language; and Is able to translate effectively, accurately and impartially to and from such language and English using any necessary specialized vocabulary or terminology. For written communications, a Covered Entity is required to use a qualified translator to translating written content in paper or electronic form. A "qualified translator" means a translator who: 28 Adheres to generally accepted translator ethics principles, including client confidentiality; Has demonstrated proficiency in writing and understanding both written English and at least one other non-english language; and Is able to translate effectively, accurately and impartially to and from such language(s) and English, using any necessary specialized vocabulary, terminology and phraseology.

29 Ensuring Effective Communication with and Accessibility for Individuals with Disabilities Consistent with existing requirements, Section 1557 requires covered entities to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communication with others. Section 1557 also requires covered entities to provide appropriate auxiliary aids and services, such as alternative formats and sign language interpreters, where necessary for effective communication. Covered entities are required to make all programs and activities provided through electronic and information technology accessible to individuals with disabilities, unless doing so would impose undue financial or administrative burdens or would result in a fundamental alteration in the nature of the covered entity s health program or activity. 29

30 Ensuring Effective Communication with and Accessibility for Individuals with Disabilities Section 1557 incorporates the 2010 Americans with Disabilities Act Standards for Accessible Design as the standards for physical accessibility of new construction or alteration of buildings and facilities. Almost all covered entities are already required to comply with these standards. Covered entities cannot use marketing practices or benefits designs that discriminate on the basis of disability. Covered entities must make reasonable changes to policies, practices and procedures where necessary to provide equal access for individuals with disabilities unless the covered entity can demonstrate that making the changes would fundamentally alter the nature of the health program or activity. 30

31 Ensuring Effective Communication with and Accessibility for Individuals with Disabilities A "qualified interpreter" for an individual with a disability means an interpreter who (either remotely or on site): Adheres to generally accepted translator ethics, including confidentiality. is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary, terminology and phraseology. For an individual with a disability, qualified interpreters can include, for example, sign language interpreters, oral transliterators (individuals who represent or spell in the characters of another alphabet), and cued language transliterators (individuals who represent or spell by using a small number of handshapes). 31

32 Health Insurance in Marketplaces and Other Health Plans 32 Covered entities may not, on a discriminatory basis: Deny, cancel, limit or refuse to issue or renew a health-related insurance plan or other health-related coverage. Deny or limit a claim or impose additional cost-sharing or other limitations or restrictions on coverage. Engage in discriminatory marketing practices or adopt or implement discriminatory benefit designs in health-related insurance or other health-related coverage. Deny or limit coverage or a claim, or impose additional cost-sharing or other limitations or restrictions on coverage, for sex-specific health services provided to transgender individuals just because the individual seeking such services identifies as belonging to another gender. Categorically exclude coverage for all health services related to gender transition, and may not deny or limit coverage or impose additional cost-sharing or other limitations or restrictions on coverage for specific health services related to gender transition if those result in discrimination against a transgender individual.

33 Resources 1557 Website Translated Materials Covered Entity Training Materials for Staff /trainingmaterials/index.html Hall Render 1557 Compliance Toolkit available for purchase 33

34 Please visit the Hall Render Blog at for more information on topics related to health care law. Anne M. Ruff (317) This presentation is solely for educational purposes and the matters presented herein do not constitute legal advice with respect to your particular situation.