August 8, 2016
The final rule implementing Section 1557 of the Affordable Care Act, Nondiscrimination in Health Programs and Activities, offers important civil rights protections for individuals. Anesthesia practices should understand the final rule, train staff in its provisions (or check with their hospitals on their plans for doing so) and make sure they are on target to meet the final rule’s procedural requirements.
An anesthesiology group decides not to provide labor epidural anesthesia to women with limited English proficiency (LEP).1
A nurse ignores an African-American woman in the ER who needs medical attention and makes her wait for an hour, but provides prompt attention to a white male who enters the ER after her.
A hospital refuses to treat men with breast cancer because it believes doing so would make female breast cancer patients uncomfortable.
As you’ve probably guessed, these scenarios illustrate examples of discrimination under Section 1557 of the Affordable Care Act (ACA).
On July 18, 2016, healthcare entities that participate in federally-funded programs, including Medicare, Medicaid and the Meaningful Use Electronic Health Record Incentive Program, became subject to the final rule implementing Section 1557, which was published on May 13, 2016 by the Department of Health and Human Services Office of Civil Rights (HHS OCR).
Section 1557, which prohibits discrimination based on race, national origin, sex, age or disability, has been in effect since the ACA’s passage in 2010. However, the final rule delineates for the first time how healthcare providers and insurers must uphold the law and the steps they must take to inform patients of their rights and address complaints of discrimination. The final rule includes provisions for patients with LEP and disabilities.
Pain specialists: If you haven’t already, now would be a good time to review the final rule, train staff in Section 1557 and make sure your practice meets the procedural requirements, some of which go into effect on October 16, 2016. These include developing a grievance procedure and a language assistance plan, and posting a notice of your practice’s nondiscrimination policies in physical locations and in print and electronic communication.
Anesthesiologists: Check with your hospital administration about their plans to meet the requirements and train staff.
HHS OCR strongly encourages covered entities to train staff in Section 1557 and recommends that training include physicians, physician assistants, therapists, nurses, nurse practitioners, pharmacists, medical technicians, medical assistants, home health workers, administrative assistants and others who interact regularly with the public.
To assist covered entities, HHS OCR has developed a variety of materials, including a presenter’s guide and a slide deck. These materials can be used to supplement any practice-specific Section 1557 training and procedures you might already have in place.
According to Timothy Jost, J.D., of the Institute of Medicine, writing in Health Affairs Blog, anti-ACA litigation has plateaued, but an increase in litigation claiming protection of the ACA could be on the horizon. HHS OCR provides summaries of some case examples of enforcement under Section 1557. Anesthesia providers should review these examples to familiarize themselves with the rule.
The final rule requires covered entities to take remedial action if they are found to have discriminated. Covered entities may also voluntarily improve their procedures if discrimination is not found in response to a grievance. Enforcement of Section 1557 can occur through informal mediation, the reduction or elimination of federal assistance, or referral to the Department of Justice for litigation. Private individuals and entities also can sue in federal court to challenge alleged violations of Section 1557.
An Overview
The final rule, Nondiscrimination in Health Programs and Activities, supports the ACA’s goals to expand access to healthcare, eliminate health disparities among underserved, uninsured, and often excluded populations, and achieve equity in the delivery of healthcare services and coverage.
The final rule reflects established federal civil rights laws, such as the Americans with Disabilities Act and Title VI of the Civil Rights Act of 1964, which prohibits discrimination in programs and activities receiving federal financial assistance, such as Medicare and Medicaid, based on race, color and national origin.
It is the first federal civil rights regulation, however, to bar discrimination in covered health care services based on sex, including pregnancy, certain medical conditions, termination of pregnancy, gender identity and sex stereotypes. As such, the final rule strives to educate patients and covered entities about sex discrimination in the healthcare setting.
The rule also provides important new civil rights protections for members of the LGBT population because it broadens the definition of sex discrimination to encompass gender identity, including gender expression, transgender status and non-binary gender identity.
“These protections are critical because, despite advances in public acceptance of LGBT issues over the past decade, LGBT people and their families continue to encounter discrimination when seeking health coverage and care,” states Kellan Baker, a senior fellow with the LGBT Research and Communications Project at American Progress, in a recent article in Health Affairs Blog.
Procedural Requirements
Covered entities that employ 15 or more people must develop a grievance procedure2 that incorporates appropriate due process standards and resolves grievances in a timely and fair manner. They also must designate at least one employee to serve as a Section 1557 compliance coordinator. This role includes responsibility for investigating grievances. A model grievance procedure is included in Appendix C of the final rule. (Covered entities with fewer than 15 employees are not required to have a grievance procedure.)
The final rule requires covered entities to file a form assuring compliance with Section 1557 and to post a notice regarding their nondiscrimination policies by October 16, 2016.
The notice must be posted in physical locations where members of the public can see it, on the website in a conspicuous place accessible from the home page and in significant communications, such as handbooks and outreach publications. Smaller publications, such as postcards, can include a shorter statement.3 OCR offers a sample notice, statement and taglines translated into 64 languages; however, covered entities are free to create their own notices.
Covered entities must present the notice in English and include taglines in the top 15 languages spoken by individuals with LEP in their state. They can also post the notice in other languages if they wish. Small significant publications may include taglines in the top two non-English languages spoken in their state instead of 15. An interactive map showing the most common non-English languages spoken by state can be found here.
Key Provisions
In other key provisions:
Section 1557 encompasses discrimination related to sexual orientation in which evidence shows that the discrimination is based on gender stereotypes. The rule does not resolve whether this extends to discrimination based on a person’s sexual orientation status alone. Under the rule, OCR will evaluate complaints of sex discrimination based on an individual’s sexual orientation to determine whether they can be addressed under Section 1557.4
The final rule does not contain a new exemption based on religion. However, it notes the ability of a covered entity to claim existing religious exemptions in federal laws such as the Religious Freedom Restoration Act (RFRA) noting that some employers may believe they have a valid religious reason to refuse to cover health care services such as treatments related to gender transition.5
Sex-specific health programs and activities are prohibited unless the covered entity can show that the program is related to a health or scientific objective. This standard should allow medical researchers to justify most sex-specific clinical trials; however, researchers would be required to provide justification for studies that lack a scientific or clinical reason for the limitation.6
In keeping with the provisions of the Americans with Disabilities Act, the final rule requires covered entities to provide auxiliary aides and services for people with disabilities, such as sign language interpreters, and to ensure the accessibility of electronic and information technology programs, unless doing so would create an undue financial or administrative burden.7
The rule also requires covered entities to take reasonable steps to provide meaningful access to individuals with LEP and to develop a language access plan “appropriate to its particular circumstances” with regard to geography, size, programs and services and other factors.
According to HHS OCR, the standards incorporated into the rule are flexible, “taking into account factors such as the nature and importance of the communication, and, as relevant, the frequency with which the covered entity encounters the language spoken by the individual, the resources available to the covered entity, and other considerations.”8
The data point to a substantial need for language services in healthcare. In 2013, approximately 61.6 million individuals, foreign and U.S. born, spoke a language other than English at home, and 41 percent (25.1 million) were considered LEP, the Migration Policy Institute reports. The LEP population in the U.S. rose from six percent in 1990 to 8.5 percent in 2013. The most dramatic period of growth was the 1990s, when the LEP population rose by 52 percent.
Conclusion
Nondiscrimination in Health Programs and Activities provides important new civil rights protections for healthcare patients. Review the final rule, train your staff and make sure you comply with the procedural requirements that already have or will go into effect soon. For questions about Section 1557, contact HHS OCR at 1557@hhs.gov.
With best wishes,
Tony Mira
President and CEO
1Harvard Asian American Policy Review Journal, http://hksaapr.com/233/#_ednref6
2Nondiscrimination in Health Programs and Activities, Office for Civil Rights, Department of Health and Human Services, May 18, 2016 http://www.nclrights.org/wp-content/uploads/2016/05/2016-HHS-1557.pdf, p. 67
3Ibid, p. 76
4Ibid, p. 53
5Ibid, p. 12
6Ibid, p. 121
7Ibid, p. 177
8Ibid, p. 5
