Health care providers that receive federal funds (including hospitals and physicians) are required to comply with new, expanded non-discrimination requirements implemented by Section 1557 of the Affordable Care Act as of July 18, 2016. A month has passed and I am concerned that some providers may have missed the deadline and be unaware of the scope of the new requirements.
The provisions of the Section 1557 final regulations’ that will have the most significant impact on health care providers are (1) the requirements for nondiscrimination on the basis of sex and (2) access to health care programs for individuals with limited English proficiency (LEP).
Nondiscrimination on the Basis of Sex
Hospitals and physicians may need to conduct employee training to minimize the possibility of exposure to liability for discrimination on the basis of sex. Discrimination “on the basis of sex” is defined by the Office of Civil Rights (OCR) to include discrimination related to pregnancy, sex stereotyping and gender identity. Sex stereotyping includes discrimination against an individual because his or her expression of his or her gender does not conform to traditional notions of masculinity or femininity.
The OCR has indicated that an example of discrimination on the basis of gender identity is the consistent, repeated, and intentional incorrect usage of pronouns or names in the treatment of transgender individuals (e.g., an Emergency Room nurse consistently refers to a transgender female as “he” despite repeated requests from the patient that the nurse use “she,”).
Hospitals and physicians also need to be prepared to address transgender bathroom issues. The final regulations repeats several times that potential discrimination based on gender identity also includes “the discriminatory denial of access to facilities.”
Notice Requirements – Significant Publications and Significant Communications
Covered hospitals and physician practices must comply with certain notice requirements notifying its patients of their rights under section 1557 of the ACA. A sample notice, translations and taglines are available at: http://www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources.
A Notice of Nondiscrimination must be placed in (a) “significant publications and significant communications, (b) in physical locations where the covered entity interacts with the public (e.g., patient intake points), and (c) linked from the covered entity’s home webpage. The covered entity must also place taglines in the top 15 languages spoken in their respective states along with the notice described above. The translated taglines inform LEP individuals in their primary languages of language assistance services available free of charge through the covered entity. Hospitals and physician groups must ensure they have translator services available to actually fulfil the notice requirements.
For the notice requirements, covered entities have 90 days from the effective date of July 18, 2016 to comply.
Covered hospitals and physician practices employing 15 or more individuals must designate at least one employee as a compliance coordinator to investigate complaints of non-compliance and establish procedures providing for prompt resolution of grievances. The OCR has also published a sample grievance policy.
About the Author
Cori H. Loomis, J.D. is an associate attorney at Christensen Law Group, PLLC. She is an expert in healthcare law, employment issues, and business transactions. You can read more about her and her legal experience here.