What You Need to Know About Section 1557: The ACA Nondiscrimination Provisions

The Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. Section 1557 builds on long-standing Federal civil rights laws: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973 and the Age Discrimination Act of 1975. Individuals may either file a complaint with the Office of Civil Rights (OCR) or the law creates a private cause of action.

Who must comply?

Physicians receiving financial assistance from HHS (except solely Medicare Part B).

When?

By October 16, 2016

What must be done?

Post notices, taglines, and take steps to provide meaningful access to individuals with limited English proficiency. This may mean you need to enter into a contract with a call center.

What does Section 1557 require?

By October 16, 2016, all covered entities must post notice and taglines in the top 15 languages in conspicuously visible font size for individuals with limited English proficiency (LEP). The rules require language assistance for persons with LEP. A provider may not require an individual with LEP to provide his or her own interpreter. The Office of Civil Rights website contains sample notices, statements and taglines in multiple languages. (See link below). The rules require using a “qualified translator” when translating written content. The rule itself is lengthy and specific. Any physicians, hospitals or entities receiving any financial assistance with HHS, including Medicare Parts A, C & D; Medicaid grants; loans; subsidies; meaningful use payments; payments for research offered through NIH; payments for any health program administered by HHS; etc. must comply. If a physician’s only financial assistance from HHS is to receive Part B, he or she is not covered. If a physician or entity is principally engaged in health care then all of the operations are covered minus certain limited exceptions.

Covered entities must offer a qualified interpreter to an individual with LEP when oral interpretation is a reasonable step to provide meaningful access. The interpreter need not be licensed under state law, but must have relevant proficiency. Simply having above average familiarity with speaking or understanding the relevant foreign language does not necessarily qualify him or her as an interpreter. HHS has regulations that apply to covered entities choosing to provide interpreters through remote video. See 45 C.F.R. § 92.201(f)

What are the basics?

1. Do not discriminate on the basis of race, color, national origin, sex, age, or disability. Treat men and women equally in healthcare and treat individuals consistent with gender identity. Provide language assistance. Provide auxiliary aids to those with disabilities. Make newly constructed or altered facilities accessible to those with disabilities.
2. Sign a form with HHS that you will comply – HHS-690 Form.
3. Entities with 15 or more employees must appoint a compliance coordinator and establish a grievance coordinator.
4. “Taglines” and statements must be included on “significant” documents and communications. HHS is working on guidance as to what is a “significant” publication. Information on services or treatment, or the administration of drugs, is considered significant.
5. Post notices of nondiscrimination. A sample notice is available from the link set forth below.
6. The entity must take reasonable steps to provide meaningful access to LEP persons.

What is a tagline?

All covered entities must post short statements written in non-English informing individuals that language assistance services are available free of charge. These taglines should be posted in the top 15 languages spoken by LEP persons in that state. (See list below). The entity should post the taglines in physical locations with interaction with the public, websites and other significant communications. The top two languages should be posted in small sized publications.

Is there guidance?

OCR has translated a sample notice of nondiscrimination and the taglines for use by covered entities into 64 languages: www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/index.html

HHS has provided a training guide (http://www.hhs.gov/sites/default/files/section1557-presenters-guide.pdf and http://www.hhs.gov/sites/default/files/section1557-training-slides.pdf).

What are the current top 15 languages for Alabama?

• Spanish — 75,000
• Chinese — 5,405
• Korean — 4,554
• Vietnamese — 3,708
• Arabic — 1,440
• German — 1,411
• French — 1,278
• Gujarati — 888
• Tagalog — 856
• Hindi — 818
• Laotian — 681
• Russian — 586
• Portuguese — 516
• Turkish — 505
• Japanese — 484

http://www.hhs.gov/sites/default/files/resources-for-covered-entities-top-15-languages-list.pdf