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Are You Compliant With ACA Nondiscrimination Provisions?

A closer look at the rules included in section 1557 of the Affordable Care Act.

The Affordable Care Act includes Section 1557, which prohibits discrimination on the basis of race, color, national origin, sex, disability or age in any health program or activity any part of which is receiving federal financial assistance, or under any program or activity that is administered by an Executive Agency, or an entity established under the Affordable Care Act.  

Section 1557 of the ACA adopts and expands on the existing nondiscrimination provisions of other Federal civil rights laws, specifically, the Civil Rights Act of 1963, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.

On May 18, 2016, the Department of Health and Human Services (HHS) published a final rule with the regulations to implement the nondiscrimination provisions.  Most of the provisions became effective on July 18, 2016, except for the notice requirements.  Covered entities must comply with the notice requirements by October 16, 2016.  

The regulation requires every covered entity to take initial and continuing steps to notify patients and the general public:

•    that the entity does not discriminate;

•    that the entity provides appropriate auxiliary aids and services including interpreters to individuals with disabilities;

•    that the entity provides language assistance services including translated documents and oral interpretation to individuals with limited English proficiency;

•    how individuals obtain auxiliary aids and language assistance from the covered entity;

•    the name of the person responsible for compliance with the nondiscrimination standards;

•    the availability of a grievance procedure and how to file a grievance;  and

•    how to file a discrimination complaint with the OCR.  

The details of the notice requirements have been challenging for some covered entities.

Every covered entity must post these notices informing patients and the general public of the above seven requirements in a conspicuously-visible font in each of the following locations:  their significant communications and significant publications except for small-sized communications; in conspicuous physical locations where the covered entity interacts with patients and the general public; and in a conspicuous location on the website of the covered entity.  These notifications must also include "taglines" in at least the top 15 languages spoken by individuals with limited English proficiency in the state or states where the covered entity is located.  Taglines are short statements written in non-English languages to alert individuals with limited English proficiency to the availability of language assistance services, free of charge, and how the services can be obtained.  

For small-sized publications, every covered entity must include a notice stating the covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities.  The notice for small-sized publications must include taglines for at least the top two languages spoken by individuals with limited English proficiency in the State or States where the covered entity is located.  

The HHS Office of Civil Rights (OCR) published a sample notice for use by covered entities on the OCR website under information for individuals. The OCR website also includes a sample tagline, and translation resources for covered entities: www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/index.html.

While the regulation is new, the OCR has been investigating discrimination complaints under section 1557 since the Affordable Care Act was enacted in 2010.  The OCR has numerous case examples on its website, which are organized by the type of alleged discrimination. The types of discrimination are organized into the following categories: 
  • Adoption/Foster Care
  • Disability
  • HIV/AIDS
  • Limited English Proficiency
  • Olmstead
  • Race, Color, and National Origin
  • Sex/Gender
  • Temporary Assistance for Needy Families.  
Olmstead complaints involve the unjustified segregation of persons with disabilities.

Every covered entity needs to update its patient notices based upon the additional requirements of section 1557 of the Affordable Care Act.

Michael L. Smith, JD, RRT is board certified in health law by The Florida Bar and practices at The Health Law Firm in Altamonte Springs, Fla. This article is for general information only and is not a substitute for formal legal advice.


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