Therapist Signing to Elderly Man

The rule offers specific information on discrimination issues involving transgender individuals, English proficiency, and notification requirements.

Navigating health reform

Covered Entities Must Comply With Section 1557 Discrimination Protections

  • 1/20/2017

At a high level, health care programs and activities that receive federal financial assistance (i.e., covered entities) are prohibited from discriminating on the basis of race, color, national origin, sex, or disability. Section 1557 of the Affordable Care Act (ACA) outlines the most recent protections that became effective on July 18, 2016. For covered entities, the new requirements are another addition to the Americans with Disabilities Act (ADA), Rehab Act, and other nondiscrimination and civil rights laws.

Protection for transgender individuals

The rule prohibits discrimination on the basis of gender identity, and specifically protects a person who is transgender.

Top Five Questions for Your Organization
1. What resources are in place for transgender individuals and people with limited English proficiency?
2. Have we identified an internal contact for patients to learn more about new regulation?
3. Do we have the resources to meet the new regulations, or do we need to contract with a service?
4. How do we need to operate differently to ensure compliance?
5. What documents need to be edited to meet compliance requirements?

Assisting individuals with limited English proficiency

The rule requires covered entities to take reasonable steps to provide accurate and timely language assistance services for those “eligible to be served or encountered in their health programs.” The assistance must be provided free of charge, be accurate and timely, and protect the privacy and independence of the individual with limited English proficiency (LEP).

To comply with the provisions, covered entities must have the capacity to provide a qualified interpreter for oral communications and a qualified translator for written communication. A qualified interpreter or translator is an individual who has the characteristics and skills necessary to interpret or translate for an individual with a disability or LEP. Covered entities may not rely on staff to perform interpretation services unless the staff member is a qualified bilingual or multilingual staff person, meaning that he or she is proficient in speaking and understanding both spoken English and one other spoken language including specialized vocabulary, terminology, and phraseology. An individual with average familiarity with another language is not sufficient.

The covered entity may not require an individual with limited English to provide his or her own interpreter, except in an emergency situation or at the individual’s request. Covered entities may not rely on a minor child or other unqualified individual to interpret, and may not use low-quality, video remote interpreting services. Individuals with LEP are not required to accept language assistance services.

Notifying individuals of nondiscrimination practice

Under the rule, a covered entity must notify beneficiaries, enrollees, applicants, and members of the public of certain information related to its nondiscrimination practices. This information must be posted in spaces open to the public and must be included in “publications and significant communications” targeted at patients, including small-sized publications. The Department of Health and Human Services’ Office of Civil Rights (OCR) has prepared a sample notice in an appendix to the new regulation.

Since October 16, 2016, covered entities have been required to post short statements, called taglines, indicating the availability of free of charge language assistance services. OCR has prepared these taglines in more than 50 languages. These statements must be posted in physical offices and on the website of the covered entity in the top 15 languages spoken by individuals with LEP in the state. Taglines must be included in “publications and significant communications” targeted at patients, except small-sized communications like post cards or tri-fold brochures. Small-sized publications and significant communications must contain taglines in the top two languages spoken by individuals with LEP in the state.

Grievance procedure required

Covered entities with 15 or more employees are required to have a civil rights grievance procedure and an employee designated to coordinate compliance. OCR has prepared a sample grievance procedure in an appendix to the new regulation.

Covered Entities
The new regulation applies to health care programs and activities that receive federal financial assistance like Medicare or Medicaid, including:
• Health care providers
• Health-related schools and education and research programs
• State public health agencies and Medicaid agencies
• Health insurance marketplaces and all plans offered by issuers that participate in those marketplaces
• Any health program or activity that the federal Department of Health and Human Services operates

How we can help

Because the requirements of the new regulations are specific and intricate, organizations should carefully review their current practices and determine if changes are necessary to maintain compliance.