What Covered Entities need to do NOW to comply with the new nondiscrimination standards

Beginning on October 17, 2016, medical practices (and other Covered Entities) who serve Medicare, Medicaid, VA, or TRICARE beneficiaries will be required to implement new practices related to nondiscrimination. The Final Rule, nearly 6 years in the making, is commonly called “Section 1557”--it implements Section 1557 of the Affordable Care Act, the purpose of which is to prevent discrimination based on race, color, national origin, sex, age, or disability. Failure to comply with Section 1557 carries a variety of potential consequences, including civil discrimination actions, Department of Justice proceedings, suspension or termination from ability to receive federal financial assistance, and federal compliance oversight (e.g., compliance reviews).

Section 1557 addresses various sources of potential discrimination, and requires careful consideration by medical practices of whether policies and culture are in line with the new rule, which:

  1. Requires that women be treated equally with men in the health care they receive.
  2. Prohibits the denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping. (For more nondiscrimination requirements related to sex, CLICK HERE.)
  3. Requires covered health programs and activities to treat individuals consistent with their gender identity.
  4. Requires covered entities to make all programs and activities provided through electronic and information technology accessible; to ensure the physical accessibility of newly constructed or altered facilities; and to provide appropriate auxiliary aids and services for individuals with disabilities. (For more nondiscrimination requirements related to individuals with disabilities CLICK HERE.)
  5. Prohibits the use of marketing practices or benefit designs that discriminate on the basis of disability and other prohibited bases.
  6. Requires that covered entities take reasonable steps to provide meaningful access to each individual with limited English proficiency eligible to be served or likely to be encountered in their health programs and activities; and encourages the development of a language access plan. (For more nondiscrimination requirements related to individuals with LEP, CLICK HERE.)

Practices should also begin to evaluate how they will comply with the procedural requirements of the rule. First, practices with 15 or more employees need to set up a grievance procedure and a compliance coordinator. Second, all covered entities need to post notices of nondiscrimination and taglines that alert individuals with limited English proficiency (LEP) to the availability of language assistance services. The taglines must be available for most documents in at least the top 15 non-English languages spoken in the State in which the practice is located. For small sized communications such as postcards, the final rule requires entities to post a nondiscrimination statement and taglines in at least the top two non-English languages spoken by individuals with limited English proficiency in the State. A list of the top 15 non-English languages in each state can be found HERE.

The Department of Health and Human Services’ Office of Civil Rights (OCR) has released a number of resources to assist practices in complying with the rule. The final rule contains a model grievance procedure, and the OCR web site has sample documents of a Notice of Nondiscrimination, Statement of Nondiscrimination and Taglines available for download in 64 languages and in two file formats. In addition, OCR created training materials for practices who wish to learn more about their obligations, and to assist practices in training staff. 

If your practice requires assistance in evaluating or implementing your Section 1557 compliance program, please contact Rebecca at rebecca.gwilt@nixonlawgroup.com.