ALERT – New ACA Notice Requirements Effective Now

The final rule implementing certain procedural requirements of Section 1557 of the Affordable Care Act (ACA) became effective this month, applying to every health program or activity that receives federal financial assistance.  This rule extends nondiscrimination requirements to the provision of healthcare. 

Does this apply to me?

It probably does.  Section 1557 applies to all health programs and activities that receive federal financial assistance from the U.S. Department of Health and Human Services (HHS) and health programs and activities that are administered by HHS.  Federal financial assistance includes grants, property, Medicaid, Medicare Parts A, C and D payments (Medicare Part B is excluded), Children’s Health Insurance Programs and tax credits and cost-sharing subsidies under Title I of the ACA.  It also applies to state based and federally facilitated health insurance Marketplaces/Exchanges. 

Notice Requirements

Covered entities (CEs) must now notify their patients and the general public of the following:

• The CE does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities.
• The CE provides free aids and services to people with disabilities, including qualified sign language interpreters and written information in other formats.
• The CE provides free language assistance services to people whose primary language is not English, including qualified interpreters and information written in other languages.
• How to obtain these services and who to contact.
• How to file a complaint with the Office for Civil Rights
• How to file a grievance and the contact information for the responsible employee (if the CE employs 15 or more people)

CEs are required to post a notice with the above information, as well as “taglines” in at least the top 15 languages spoken by people with limited English proficiency in the relevant state.  A sample notice can be found here  and the tagline can be found here.  The notice and taglines must be posted:

• In significant publications and communications that are not small-sized (the final rule does not define “significant publications and communications”)
• In conspicuous physical locations where the CE interacts with the public (such as waiting areas)
• In a conspicuous location on the CE’s website accessible from the home page

Small-sized communications and publications, such as postcards and tri-fold brochures, must use the more succinct statement of non-discrimination published here, as well as taglines in at least the top two languages spoken in the relevant state.

Language Assistance

CEs must take reasonable steps to provide meaningful access to each individual with limited English proficiency.  CEs may not require the individual with limited English proficiency to provide his or her own interpreter.

Nondiscrimination

The final rule builds on existing civil rights laws and prohibits discrimination on the basis of race, color, national origin, sex or disability in healthcare.  Women must be treated equally with men and healthcare or healthcare coverage cannot be denied based on sex, pregnancy, gender identity and sex stereotyping.  Individuals must be treated consistent with their gender identity. 

Employee health benefit programs

Discrimination is also prohibited in the operation of an employee health benefit program, including insured and self-insured plans, employer sponsored wellness programs, and health clinics.  If changes are required in your health insurance or group health plan benefit design, they must be implemented by the first day of the first plan year beginning on or after January 1, 2017. 

Accessibility requirements

CEs must ensure that their health programs or activities which are provided through electronic means are accessible to individuals with disabilities, unless doing so would result in an undue financial burden or fundamentally alter the nature of the program or activity.  Newly constructed or altered facilities must also be accessible to individuals with disabilities.

Grievance Procedures

CEs who employ more than 15 persons are required to appoint a person responsible for compliance with Section 1557 and adopt grievance procedures for the investigation and resolution of any noncompliance complaints.  The name and contact information for the responsible employee and the availability of the grievance procedure must be included in the public notice.  For sample grievance procedures, click here.

Assurances

Each entity applying for federal financial assistance, health insurance issuers seeking certification to participate in a Marketplace, and states seeking approval to operate a State Marketplace must submit an Assurance of Compliance with Section 1557.  The written Assurance of Compliance can be completed online.

Action items

Immediate action must be taken to ensure compliance with Section 1557.  

• Determine whether you are a CE (you likely are)
• Determine whether you have 15 or more employees – if so make sure you have a grievance procedure and responsible employee
• Post the required notices, statements and taglines (links to sample are above)
• Review your employee health benefit program
• Make sure you are providing meaningful access to individuals with limited English proficiency
• Make sure your technology and facilities are accessible to individuals with disabilities
• Ensure compliance with nondiscrimination obligations
• Complete your Assurance of Compliance

References:

45 C.F.R. §92.1, et seq.

http://www.hhs.gov/civil-rights/for-individuals/section-1557/

http://www.hhs.gov 

The information herein does not constitute legal advice. Do not act or refrain from acting based upon information provided on this site without first consulting an independent attorney of your choice about your particular factual and legal circumstances.