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Affordable Care Act Nondiscrimination Final Rule

On May 13, 2016, the U.S. Department of Health and Human Services (“HHS”) issued a final rule implementing Section 1557 of the Affordable Care Act (“Section 1557”) protecting individuals from discrimination in health care on the basis of race, color, national origin, age, disability, and sex, including discrimination based on pregnancy, gender identity, and sex stereotyping (the “Rule”). In addition, the final rule increases language assistance for people with limited English proficiency and enhances communication with individuals with disabilities. The majority of the Rule became effective on July 18, 2016.

I.  Applicability of the Rule

The Rule applies to the following, termed “covered entities” for purposes of the Rule:

  • Entities receiving reimbursement for services through Medicare (excluding Part B) or Medicaid;
    • This includes hospitals, nursing facilities, home health agencies, physical therapy/speech pathology programs, end stage renal disease dialysis centers; intermediate care facilities, rural health clinics, comprehensive outpatients rehabilitation facilities; ambulatory surgical centers, organ procurement organizations, hospices, community mental health centers, and federally qualified health centers.
  • Laboratories that receive Medicaid payments for covered laboratory tests;
  • Community health centers receiving grant awards from HRSA;
  • Health-related schools or other health education entities receiving grant awards to support health professional training programs;
  • State Medicaid agencies receiving funds to operate CHIP programs;
  • State public health agencies receiving financial assistance through the CDC, SAMHSA, and other HHS components;
  • Qualified health plan issuers receiving advance payments of premium tax credits and cost-sharing reductions; and
  • Physicians receiving Medicaid and “meaningful use” payments.

II.  Prohibition of Discrimination on the Basis of Sex

The final rule requires covered entities to:

  • Provide equal access to health care without discrimination based on sex, including discrimination based on pregnancy, gender identity, or sex stereotypes;
  • Treat individuals consistently with their gender identity, including with respect to access to facilities, such as bathrooms and patient rooms;
  • Never deny or limit sex-specific health services simply because the individual seeking the service identifies as another gender; and
  • Only allow sex-specific health programs and activities when there is an exceedingly persuasive justification and that the program is substantially related to an important health-related objective.

III.  Protections for Individuals with Limited English Proficiency (LEP)

The final rule prohibits discrimination based on national origin, including discrimination against individuals with limited English proficiency. Providers must:

  • Take reasonable steps to provide “meaningful access” to LEP individuals who are eligible to be served, or likely to be encountered, within the provider’s health services;
    • “Reasonable steps” include providing language assistance services such as oral language assistance or written translation.
  • Language assistance must be free for the LEP individual, accurate, timely, and protective of the privacy and independence of the individual;
  • Providers are encouraged to develop a language access plan to implement LEP assistance; and
  • When providing language assistance services, providers may not:
    • Use low-quality video remote interpreting services,
    • Require the LEP individual to provide their own translator,
    • Rely on unqualified staff or translators,
    • Rely on a minor child accompanying the LEP individual to serve as a translator except in an emergency situation when no other qualified interpreter is present.
    • Rely on an adult accompanying the LEP person only if the LEP individual specifically requests that the accompanying adult interpret, the adult agrees, and reliance on that adult for translation services is appropriate under the circumstances.

IV.  Protections for Individuals with Disabilities

Unless doing so would impose undue burdens or would fundamentally alter the nature of the health program, the final rule requires all providers to:

  • Provide effective communication with individuals with disabilities,
  • Make reasonable changes to their policies, practices, and procedures in order to provide equal access to individuals with disabilities;
  • Make programs provided through electronic and information technology accessible; and
  • Ensure that newly constructed or altered facilities are physically accessible and that appropriate auxiliary aids and services are provided where necessary.

V.  Procedural Requirements

  • Entities applying for Federal financial assistance must submit an assurance that the entity’s health programs activities will be operated in compliance with Section 1557;
  • Covered entities with fifteen (15) or more employees are required to have in place a grievance procedure and a compliance coordinator; and
  • Covered entities must also:
    • Post a notice that includes at minimum:
      • A statement that the provider will not discriminate on the basis of race, color, national origin, sex, age, or disability;
      • An alert to the availability of language assistance services and auxiliary aids;
      • The contact information of the compliance officer;
      • The grievance filing process; and
      • Information regarding how to file a discrimination complaint with the OCR.
  • Post taglines informing LEP individuals of the availability of language assistance services in at least the top fifteen (15) non-English languages spoken in the State in which the provider is located.
  • The notice and tagline must be posted in all significant publications and communications and in conspicuous locations where the provider interacts with the public and on the provider’s website.
  • Notifications and taglines must be posted no later than October 16, 2016.

VI.  Enforcement

HHS’s Office of Civil Rights (“OCR”) will enforce the Rule. If any of these requirements are not followed, or if discrimination occurs, OCR may seek to enforce remedial actions to correct the effects of the discrimination. Additional enforcement could include the termination or suspension of Federal financial assistance, refusal to grant Federal financial assistance, and any other means authorized by law. The enforcement mechanisms provided under 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, or the Age Discrimination Act of 1975 are available for enforcement. There is a private cause of action available for violations of the Rule, and compensatory damages are available.

Please contact Angela C. Codougan, Esq. at 330-374-7475 if you have any questions or need additional information.

Key Takeaways from BMD’s Banking and Cannabis Webinar

Estimates have shown that the cannabis industry is one of, if not the, fastest growing industries in the United States in recent years, with no sign of slowing. Growth requires capital. Banks need loans, and cannabis companies, which are rapidly becoming bankable need access to lower cost bank lending. While cannabis remains federally illegal, an impediment to access to financial institution credit, banks and credit unions are nevertheless entering the market in increasing numbers.

American Heart Association's 2021 Go Red For Women

The BMD Season of Giving in 2020 was a great way to help out organizations that help others. Continuing community involvement in 2021, we will be looking to the American Heart Association's Go Red for Women campaign. Healthcare and Hospital Law Member and Vice President Amanda Waesch is the Chair of Go Red for Women for the American Heart Association, which is kicking off the 28 days of Heart Health. Show your support on February 5th with “Wear Red and Give” Day. Consider hosting a Jeans Day every Friday in the month of February at your place of business in support of Go Red For Women, even encouraging remote employees to participate. Snap a pic of your team members in their red gear and post on social media (socially distanced in person or a virtual group photo will work, too!) – see the toolkit here for sharing on your favorite social platforms. Click here to learn more and donate to the GRFW Campaign.

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Join Brennan Manna Diamond Employment & Labor law Member Jeffrey Miller and Healthcare & Employment law Partner Bryan Meek on December 10 ET for 'COVID-19 Legal Issues Update and Ask Us Anything' webinar.

Brennan, Manna & Diamond Law Firm Promotes Four Attorneys in Akron and Jacksonville Offices

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