Reminder to health care providers: Are your ACA Section 1557 notices and taglines up?

October 19, 2016

Alert

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. As a reminder, under the final rule codifying Section 1557, all covered entities were required to comply with detailed notification requirements before Oct. 17, 2016.

Who is required to comply?

Section 1557 applies to any "covered entity," which is defined to include any entity that operates a “health program or activity” any part of which receives “Federal financial assistance,” health plans on a state-based or federally-facilitated Health Insurance Marketplace, and, interestingly, the Department of Health and Human Services (DHHS). This definition extends to a broad range of health care providers that participate in Medicare^[1]or Medicaid, or that receive meaningful use payments, including most:

Physicians in solo practice
Physician group practices
Health clinics
Ambulatory surgery centers
Laboratories
Nursing facilities
Hospitals (short-term, long-term, rehabilitation, and psychiatric)
Hospices
Organ procurement organizations
Home health agencies
End stage renal disease dialysis centers
Physical therapy practices and programs
Speech pathology programs
Rural health clinics
Community mental health centers
Laboratories (hospital-based, office-based, or freestanding)
Residential or community-based treatment facilities
Federally qualified health centers (FQHCs)
Intermediate care facilities for individuals with intellectual disabilities.

All health care related entities, including schools and professional training programs, should carefully assess the applicability of Section 1557 to their activities.

WHO DOES SECTION 1557 PROTECT?

The notification requirements are designed to protect individuals present in the U.S., whether lawfully or not, who experience discrimination based on any of Section 1557’s prohibited bases. Section 1557 is notably the first Federal civil rights law to broadly prohibit sex discrimination in health programs and activities. Sex discrimination includes, but is not limited to, discrimination based on an individual’s sex, including pregnancy, related medical conditions, termination of pregnancy, gender identity^{^[2]} and sex stereotypes.^{^[3]}

Section 1557 also focuses on national origin discrimination. National origin includes an individual’s, or his or her ancestor’s, place of origin or country, or any physical, cultural, or linguistic characteristics of a national origin group. Covered entities must prepare to provide reasonable language assistance, free of charge, to persons of limited English proficiency (LEP).^{^[4]} This may include in-person or remote interpreter services, as well as written translations, as applicable. In delivering language assistance services, the covered entity may not:

Require an individual to provide his or her own interpreter.
Rely on a minor child to interpret, except in a life threatening emergency where there is no qualified interpreter immediately available.
Rely on interpreters that the individual prefers when there are competency, confidentiality, or other concerns.
Rely on unqualified bilingual or multilingual staff.
Use low-quality video remote interpreting services.

HOW TO TAKE ACTION

Covered entities must take appropriate initial and continuing steps to notify patients and members of the public about compliance with the subject regulations and the availability of resources to foster a nondiscriminatory environment and assist LEP persons. The patient notification requirements fall within two broad categories: notices and taglines.

NOTICES

Covered entities must put patients, beneficiaries, enrollees, applicants, and members of the public on notice that they comply with Section 1557 by posting and publishing a nondiscrimination statement, a statement about nondiscrimination and accessibility requirements, and language-specific taglines. Covered entities may combine the nondiscrimination statement and the statement about nondiscrimination and accessibility requirements in one notice, provided the font size utilized is conspicuously-visible and the notice contains the following seven items, as applicable:

The covered entity complies with applicable Federal civil rights laws and does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities, aka the “nondiscrimination statement.”
The covered entity provides appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, free of charge and in a timely manner, when such aids and services are necessary to ensure an equal opportunity to participate to individuals with disabilities.
The covered practice provides language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner to LEP individuals when such services are necessary to provide meaningful access.
How to obtain the aids and services.
If the covered entity employs more than 15 employees, identification of, and contact information for, the responsible employee to obtain assistance or file a grievance.
If the covered entity employs more than 15 employees, the availability of a grievance procedure and how to file such grievance.
How to file a discrimination complaint with the OCR.

The notice must be posted and published in all full-sized significant publications and significant communications, in conspicuous physical locations where the covered entity interacts with the public (e.g., the patient waiting room, the check-in/check-out area, the examination rooms, etc.), and on the covered entity’s website. Small-sized publications and communications such as postcards and tri-fold brochures are only required to contain the nondiscrimination statement.

TAGLINES

Taglines are short statements in non-English languages to notify the public about the availability of language assistance services free of charge. They must be posted and published in the same three locations as the notice – in at least the top 15 non-English languages spoken by individuals with LEP in the relevant state or states. Small-sized publications and communications must only post the taglines in the top two non-English languages.

WHEN TO TAKE ACTION

The requirements of Section 1557 are already upon us. This alert is a reminder to covered entities such as physician practices and hospitals to promptly act on these federal mandates. To learn more about the provisions of Section 1557, you may visit the DHHS website or contact the attorneys listed below.

[1] The final rule clarifies that, consistent with enforcement of other civil rights authorities by the DHHS Office for Civil Rights (OCR), the definition of ‘‘Federal financial assistance’’ does not include Medicare Part B, which means that physicians receiving only Medicare Part B payments are not covered under the regulation. However, because almost all physicians receive payments from other DHHS programs such as Medicaid or Medicare meaningful use payments apart from Medicare Part B, OCR has concluded that very few physicians are excluded from the provisions of Section 1557.

[2] Gender identity is defined as an individual's internal sense of gender, which may be male, female, neither, or a combination of male and female.

[3] Sex stereotypes encompass all stereotypical notions of masculinity or femininity.

[4] An LEP person is one whose primary language for communication is not English and who has a limited ability to read, write, speak, or understand English.

Over the past 24 months, the U.S. Department of Health and Human Services Office for Civil Rights has brought notable enforcement efforts against several non-profit covered entities and business associates, resulting in instances of six and seven-figure penalties against providers across the county for incidents involving breaches of protected health information.

A new amendment to New York state law, which would have required all healthcare providers to obtain separate consents from patients for treatment and payment is on hold until further guidance is released, according to the New York Department of Health.

On November 1, 2024, the Centers for Medicare & Medicaid Services issued the Medicare Physician Fee Schedule 2025 final rule, which establishes new advanced primary care management billing codes that will expand opportunities for physician practices, federally qualified health centers, rural health clinics and other health care providers to get paid for services provided by clinical staff under the direction of a physician, nurse practitioner or physician assistant beginning January 1, 2025.