By Elizabeth E. Hogue

The Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services published final regulations in the Federal Register on May 18, 2016, that implement Section 1557 of the Affordable Care Act (ACA). These regulations generally prohibit discrimination based on race, color, national origin, sex, age or disability.

Here is what home health agencies, hospices, HME suppliers and private duty agencies need to know about these final regulations, which were effective on July 18, 2016:
1. The regulations make it clear that discrimination based on sex is prohibited, including, but not limited to, discrimination based on individuals’ sex, including pregnancy, related medical conditions, termination of pregnancy, gender identify and sex stereotypes.

2. All providers who receive Federal financial assistance (FFA) are subject to the regulations, including providers that receive reimbursement from Medicaid and Medicaid waiver programs. This means that many private duty agencies must comply with these regulations. 

3. The regulations clarify that providers may use adult family members or friends to interpret for patients with limited English proficiency (LEP) only if family members or friends agree to interpret, providers’ reliance on companions is appropriate under the circumstances, and there are no competency or confidentiality concerns. 

4. Providers with more than fifteen employees must designate at least one employee to coordinate efforts to comply with Section 1557 of the ACA, including investigation of any grievances alleging noncompliance.

 5. Providers with more than fifteen employees must adopt grievance procedures that incorporate appropriate due process standards and that provide for prompt, equitable resolution of grievances alleging violations of Section 1557.

6. All providers must take appropriate initial and continuing steps to notify beneficiaries, applicants, members of the public, etc. that they: 

  •  Do not discriminate on the basis of race, color, national origin, sex, age or disability in their health programs and activities
  • Provide appropriate auxiliary aids and services to individuals with disabilities and information about how to obtain them
  • Provide language assistance services, including translated documents and oral interpretation free of charge in a timely manner when such services are necessary to provide meaningful access to individuals with LEP
  • Provide information about the identity of the employee responsible for compliance with Section 1557, including contact information
  • Provide a grievance procedure and information about how to file a grievance
  • Provide information about how to file a complaint with OCR 

 7. Providers are also required to do the following by October 16, 2016:

  • Post a notice that includes the information described above
  • Post a nondiscrimination statement 
  • Post taglines in the top languages spoken by individuals with LEP of the relevant state or states. An example of a tagline is: “Attention: If you speak _________ language, language assistance services are available free of charge to you. Call _________, TTY _____________.” 

Include notices and taglines in significant publications and communications targeted to beneficiaries, applicants and members of the public in conspicuous physical locations where providers interact with the public and on providers’ websites accessible from the home page of providers’ websites
8. Employers who are subject to the requirements of Section 1557 and provide health benefit programs to their employees are generally liable for discrimination in the employee health benefit programs they offer employees.

Compliance with the above provisions related to non-discrimination is yet another hurdle for providers to get over!
©2016 Elizabeth E. Hogue, Esq.  All rights reserved. 

No portion of this material may be reproduced in any form without the advance written permission of the author.

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