Key Notes:

  • ACA Section 1557 prohibits covered entities from discriminating against individuals.
  • Covered entities should ensure they understand these new discrimination prohibitions.
  • Covered entities must be in compliance with certain notification requirements by October 16, 2016.

Effective July 16, 2016, the Office for Civil Rights (OCR) of the U.S. Department of Health & Human Services (HHS) published a final rule implementing the nondiscrimination provisions in Section 1557 of the Patient Protection and Affordable Care Act (ACA). This final rule prohibits certain covered entities from discriminating on the basis of race, color, national origin, sex, age or disability in providing health services or health insurance.

A covered entity is one that operates a “health program or activity,” any part of which receives federal financial assistance. The term “health program or activity” means the provision or administration of health-related services, health-related insurance coverage, or other health-related coverage and the provision of assistance to individuals obtaining health-related services and health-related insurance coverage. The rule specifically includes examples of covered entities such as hospitals, health clinics, physician practices, nursing homes, rehabilitation centers and community health centers. Federal financial assistance for purposes of the rule means financial assistance from HHS and includes Medicaid, Medicare Parts A, C, and D payments, grants, and tax credits.

If a covered entity is principally engaged in health services or health coverage, all of its operations must be in compliance with Section 1557. For example, while a hospital receiving federal financial assistance must ensure that its medical department complies with Section 1557, the hospital must also ensure that its cafeteria, gift shops and other non-medical departments comply with Section 1557. Therefore, health care providers must comply with Section 1557 with respect to patients and other customers.

Nondiscrimination Provisions

Pursuant to Section 1557, individuals cannot be denied health services or health coverage, or otherwise be discriminated against in health services or coverage, because of their race, color, national origin, sex, age or disability. Section 1557’s prohibitions include discrimination based on limited English proficiency (LEP), sex stereotyping, gender identity and pregnancy.

A covered entity must also:

  • Adopt a civil rights grievance procedure.
  • Designate an employee to coordinate its efforts to comply with and carry out its responsibilities under Section 1557.
  • Notify beneficiaries, enrollees, applicants and members of the public of their rights under Section 1557 and of the covered entity’s nondiscrimination obligations including the required LEP taglines, as discussed below.
  • Provide meaningful access to services by individuals with LEP, including providing qualified interpreters and information written in other languages.
  • Provide effective communication for individuals with disabilities, including providing free aids and services to people with disabilities such as qualified sign language interpreters, written information in other formats (i.e., large print, audio, accessible electronic formats).
  • Ensure facilities are accessible by individuals with disabilities.
  • Ensure that electronic information is accessible to individuals with disabilities.
  • Make reasonable modifications to policies, practices or procedures when such modifications are necessary to avoid discrimination. Please note that HHS has interpreted Section 1557’s prohibition on sex discrimination in health care to include discrimination on the basis of gender identity, gender expression and transgender status.

Additionally, a covered entity’s group health plan may not discriminate against its employees on the basis of race, color, national origin, age, disability or sex (including the provision of care for transgender or sexual dysphoria services). Accordingly, a group health plan cannot:

  • Deny or limit coverage, or impose additional cost sharing or other limitations or restrictions on coverage for any health services that are ordinarily or exclusively available to individuals of one sex to a transgender individual based on the fact that an individual’s sex assigned at birth, gender identity or gender otherwise recorded is different from the one to which such health services are ordinarily or exclusively available.
  • Have or implement a categorical coverage exclusion or limitation for all health services related to gender transition.
  • Otherwise deny or limit coverage or impose additional cost sharing or other limitations or restrictions on coverage for specific health services related to gender transition if such denial, limitation or restriction results in discrimination against a transgender individual.

If a covered entity’s group health plan currently includes any discriminatory provisions, they must be removed by the first day of the plan year beginning on or after January 1, 2017.

To review fact sheets issued by OCR on key provisions, see:

Notification Requirements

By October 16, 2016, covered entities must provide a nondiscrimination notice that includes LEP taglines to beneficiaries, enrollees, applicants and members of the public. The notice must be printed in a conspicuously visible font and must be included in significant communications. OCR has provided a sample Notice of Nondiscrimination, and sample LEP taglines. Additionally, OCR has provided a list of the top 15 non-English languages for each state.

The Notice of Nondiscrimination must:

  • Be included in significant publications and communications to individuals with taglines in the top 15 languages for the state(s). The top 15 non-English languages in Ohio are Spanish, Chinese, German, Arabic, Pennsylvania Dutch, Russian, French, Vietnamese, Cushite, Korean, Italian, Japanese, Dutch, Ukrainian and Romanian.
  • If a significant publication or communication is a small-sized postcard or tri-fold brochure, then only a brief statement summarizing the notice and the top two language taglines for the particular state is required. OCR has provided a sample statement.
  • Be posted in all physical locations where covered entities interact with the public.
  • Be placed conspicuously on web sites in locations accessible from the home pages.