The Department of Health and Human Services (the “DHHS”) issued a final rule on May 18, 2016 to improve health equity under the Patient Protection and Affordable Care Act of 2010 (the “ACA”). The final rule implements Section 1557 of the ACA which prohibits discrimination based on race, color, national origin, age, disability and sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.
Who Is Subject to the Final Rule?
- The provisions of the final rule apply to health programs or activities that receive funding from the DHHS or that are administered by the DHHS and the Health Insurance Marketplaces (the “Marketplaces”), and plans offered by issuers that participate in the Marketplaces. “Covered entities” that are subject to the final rule include entities that receive Federal financial assistance through the Medicare (excluding Medicare Part B) or Medicaid programs, such as:
- Hospitals (including short-term, long-term, rehabilitation, and psychiatric);
- Skilled nursing facilities and nursing facilities (both freestanding and facility-based);
- Physicians receiving Federal financial assistance through Medicaid, “meaningful use” payments, and other sources (excluding Medicare Part B);
- Home health agencies;
- End stage renal disease dialysis centers;
- Ambulatory surgical centers;
- Intermediate care facilities for individuals with intellectual disabilities;
- Federally qualified health centers;
- Community health centers;
- Community mental health centers;
- Physical therapy/speech pathology programs.
Sex Discrimination under the Final Rule
The final rule prohibits sex discrimination in health care by requiring that women are treated equally with men, barring certain types of sex discrimination in insurance, such as charging women more than men for coverage, and prohibiting the denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping. Sex specific health programs or activities are permitted “only if the covered entity can demonstrate an exceedingly persuasive justification, that is, that the sex-specific health program or activity is substantially related to the achievement of an important health-related or scientific objective.” 45 C.F.R. § 92.101(b)(3)(iv). The final rule does not answer the question whether discrimination on the basis of an individual’s sexual orientation status alone constitutes sex discrimination under Section 1557 of the ACA. However, it makes clear that the Office for Civil Rights (OCR) will investigate complaints alleging discrimination on the basis of an individual’s sexual orientation to determine whether the complaints concern the types of stereotyping that are addressable under Section 1557.
Individuals with Limited English Proficiency
Covered entities are required to take “reasonable steps” to provide individuals with limited English proficiency (LEP) “meaningful access” to the covered entities health programs and activities. To evaluate whether a covered entity is in compliance with this requirement, the OCR will consider the nature and importance of the health program or activity, including the particular communication at issue, to the individual with LEP and other relevant factors, including whether a covered entity has developed and implemented an effective and appropriate written language access plan.
Individuals with Disabilities
Consistent with the requirements of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973, the final rule requires effective communication with individuals with disabilities, including communication through the provision of auxiliary aids and services. It also establishes standards to ensure that buildings and facilities as well as electronic information technology are accessible to individuals with disabilities. Covered entities are required to make “reasonable modifications” to their policies, procedures, and practices to provide individuals with disabilities access to health programs and activities.
Posting Notices of Consumer Rights
Covered entities are required to post a notice informing consumers about their civil rights and informing consumers with disabilities and consumers with LEP about the right to receive communication assistance. Covered entities are also required to post taglines in the top 15 languages spoken by individuals with LEP in the States in which they operate, advising consumers of the availability of free language assistance services. In addition, covered entities with 15 or more employees are required to have a civil rights grievance procedure and designate an employee to coordinate compliance.
The final rule is effective July 18, 2016, except for the following provisions:
- Notices of consumer rights and taglines, which are required to be posted within 90 days of July 18, 2016;
- Changes to health insurance or group health plan benefit design, which are required to be made by the day of the first plan year in the individual market or policy year beginning on or after January 1, 2017.
Also, there is a narrow safe harbor for building and facility accessibility, which applies to buildings and facilities that comply with the Uniform Federal Accessibility Standards and were not previously covered by the standards under the Americans with Disabilities Act of 2010, if construction or alteration was commenced before July 18, 2016.
Violations of Section 1557 and the Final Rule
The OCR is responsible for enforcing Section 1557 of the ACA and the final rule implementing its provisions, including investigating any complaints of discrimination in health programs and activities. The remedies available under Title VI of the 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 are available for violations of Section 1557. Individuals who believe their rights under Section 1557 of the ACA have been violated may seek compensatory damages in appropriate administrative and judicial actions.
If you have any questions regarding the final rule on nondiscrimination in health programs and activities or require assistance in updating your policies, procedures, and practices to comply with the rule, please contact Rochelle H. Zapol, chair of the firm’s Health Care Practice Group and the author of this alert. You can reach Rochelle at 617 456 8036 or firstname.lastname@example.org.