Lawrence is the Chair for Obermayer’s Health Care Law Department and Election Law Practice Group. Lawrence’s Health Care Law legal experience includes the representation of Pennsylvania County governments in Behavioral Health Managed...Read More by Author
Countdown to Compliance for Section 1557 of the Patient Protection and Affordable Care Act
If you are an entity covered by Section 1557 of the Patient Protection and Affordable Care Act (Section 1557), you have less than a week to prepare your non-discrimination notices and taglines. The final rule implementing 1557 requires that by October 16, 2016, healthcare providers and other covered entities publish and disseminate non-discrimination notices, including disclosures that they provide language assistance services to individuals with limited English proficiency (LEP).
The U.S. Department of Health and Human Services (HHS), Office for Civil Rights issued the final rule implementing Section 1557 on May 18, 2016. Section 1557 prohibits discrimination in health care programs and activities on the basis of race, color, national origin, sex, age, or disability. Section 1557 applies to “covered entities” or any entity that operates or administers either: (i) a health program or activity, any part of which receives federal financial assistance provided or made available by HHS; (ii) a health program or activity administered by HHS; or (iii) a health program or activity administered by an entity established by Title I of the Affordable Care Act.
Among the requirements included in Section 1557, is the requirement that covered entities publish and disseminate non-discrimination notices. To help you prepare your notices for the October 16th deadline, the Health Law Gurus have outlined what you need to know.
(1) What information must be included in the non-discrimination notices?
The required non-discrimination notice must include the following information:
- The entity does not discriminate on the basis of race, color, national origin, sex, age or disability in its health programs or activities;
- The entity provides appropriate auxiliary aids and services free of charge;
- The entity provides language assistance services such as translated documents and oral interpreters free of charge where such services are necessary to provide meaningful access to individuals with LEP;
- How to obtain auxiliary aids or translations;
- The contact information for the designated employee responsible for compliance;
- The complaint procedures and how to file a grievance; and
- Information on how to file a discrimination complaint with the OCR.
To assist covered entities in preparing their non-discrimination notices, HHS has provided a sample non-discrimination notice on its website. The sample can be found here.
In addition, covered entities must include a non-discrimination tagline translated into at least 15 different languages. The tagline is short statement written in a non-English language that indicates the availability of language assistance services free of charge. The tagline must be provided in each of the top 15 languages spoken by individuals in the state. HHS has provided a sample tagline and translated that tagline into 64 languages, all of which can be found here. HHS has also provided a state-by-state list of the top 15 languages spoken by individuals with LEP. It can be found here.
(2) Where should the non-discrimination notice and tagline be posted?
Entities covered by Section 1557 must take initial and continuing steps to inform their beneficiaries about their non-discrimination policy. Entities must post their non-discrimination notice and taglines:
- On their websites;
- In a conspicuous physical locations in an area where they interact with the public (e.g. the waiting room); and
- In their “significant publications and significant communications targeted to beneficiaries, enrollees, applicants and members of the public.”
With regard to the “significant publications and significant communications targeted to beneficiaries, enrollees, applicants and members of the public,” OCR has stated that it will interpret this provision broadly, and that it will apply the provision to both communications targeting a broad audience and those directed to individual patients. By way of example, OCR has explained that information such as educational and marketing resources, patient handbooks, consent forms, patient letters, and outreach materials should all include the non-discrimination notice and taglines.
(3) Are there instances in which a covered entity does not have to comply with these requirements?
Yes. For “significant publications that are small-sized” (e.g. postcards, flyers, or tri-fold brochures), covered entities may use a shorted non-discrimination statement, along with taglines in at least the top two non-English languages spoken in the state by LEP individuals. A sample non-discrimination statement from HHS can be found here.
The clock is ticking. If you are a covered entity, you need to ensure that your organization is in compliance with Section 1557 within the next few days. If you have a question about the non-discrimination notice requirements of Section 1557 or any of the other requirements included in Section 1557, contact the Health Law Gurus.