Download Final Rule ACA Nondiscrimination

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HHS FINAL RULE IMPLEMENTING
ACA §1557
(NONDISCRIMINATION)
O’Donoghue & O’Donoghue LLP
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Introduction
• May 18, 2016, HHS issued its final rule implementing
section 1557 of the ACA.
• Section 1557, the ACA’s nondiscrimination provision,
prohibits discrimination on the basis of race, color,
national origin, sex, age, or disability in certain health
programs and activities.
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Introduction
The final rule—
• Clarifies HHS’ interpretation of Section 1557, and
• Establishes new implementation standards for Section 1557 with
respect to the prohibition against sex discrimination, national origin
discrimination, and disability discrimination in health programs.
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Covered Entities
• The final rule applies to health insurers, hospitals, clinics,
group health plans and other entities that receive federal
funds from HHS. i.e., group health plans that—
• Participate in CMMS’ Retiree Drug Subsidy Program
• Self-insured Employer Group Waiver Plans (EGWP)
• Insured EGWPs? Maybe (review your contract with the insurer)
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Covered Entities
• HHS contends that the final rule creates minimal “new”
compliance obligations, but:
• Many covered group health plans and TPAs will need to take
certain actions to comply with the final rule’s nondiscrimination
requirements and the specific prohibitions against discrimination in
health programs.
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Effective Dates
• Effective date of the final rule is July 18, 2016, but HHS
has already begun enforcement efforts addressing ACA’s
non-discrimination provision based on its interpretation of
the statutory provisions.
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HHS’s Definition of Discrimination
on the Basis of Sex
• HHS’ definition of discrimination “on the basis of sex”
includes
• discrimination on the basis of pregnancy, false pregnancy,
termination of pregnancy, or recovery therefrom, childbirth or
related medical conditions, sex stereotyping, and gender identity.
• “sex stereotyping” refers to perceived notions of masculinity or
femininity, including perceptions of how individuals represent or
communicate their gender to others.
• “gender identity” means an individual's personal identification of
gender. And the final rule advises that a person’s identification of
gender may be different from an individual's sex assigned at birth.
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HHS’s Definition of Discrimination
on the Basis of Sex
Many group health plans covered by the final rule will need
to amend their plans and operating procedures to eliminate
discrimination on the basis of “sex stereotyping” and
“gender identity.”
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Discrimination on the Basis of Sex
The final rule contains provisions addressing gender
identity discrimination in the provision of health services
related to gender transition:
1. categorically or automatically excluding from coverage,
or limiting coverage for, all health services related to
gender transition;
2. otherwise denying or limiting coverage, or a health
claim, for specific health services related to gender
transition if such denial or limitation results in
discrimination against a transgender individual.
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Discrimination on the Basis of Sex
Plans are not required to cover particular treatments or
procedures, but denials must be based on neutral,
nondiscriminatory reasons that are not pretext for
discrimination.
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Discrimination on the Basis of Sex
HHS notes that the medical community has already
recognized the medical necessity of gender transition
related care.
In 2013, HHS invalidated Medicare's coverage exclusion
for sexual reassignment surgery, because “the record
indicated that the blanket denial of coverage was not
reasonably based on the state of current medical science.”
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Protections against Disability Discrimination
The final rule requires covered entities to take “appropriate
steps to ensure that communications with individuals with
disabilities are as effective as communications with others
in health programs and activities.”
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Protections against Disability Discrimination
The final rule requires covered entities to provide an
individual with a disability a choice of an “auxiliary aid or
service” to understand communications about health
programs or activities.
• Auxiliary aids and services include, but are not limited
to,
• qualified interpreters,
• real-time computer-aided transcription services,
• assistive listening devices,
• closed caption decoders,
• qualified reading materials
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Protections against Disability Discrimination
Covered entities must take reasonable steps to avoid
disability-based discrimination, unless doing so would
“fundamentally alter the nature of the health program or
activity.”
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Protections against Disability Discrimination
Covered entities must:
• Ensure that their health programs or activities provided through
electronic and information technology are accessible to individuals
with disabilities – such as individuals with visual disabilities –
“unless doing so would impose undue financial and administrative
burdens or would result in a fundamental alteration in the nature of
an entity's health program or activity.”
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Access to Individuals with Limited English
Proficiency
Covered entities must take reasonable steps to provide
meaningful access to individuals with limited English
proficiency who are eligible to be served or likely to be
encountered within the entity’s health programs and
activities.
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Access to Individuals with Limited English
Proficiency
While HHS states that the level, type and manner of
language assistance services will vary based on the
relevant facts, including the operations and capacity of the
covered entity. . .
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Access to Individuals with Limited English
Proficiency
The final rule does set forth certain requirements a covered
entity must satisfy to comply:
• When providing language assistance services, the
services must:
• be provided free of charge;
• be accurate and timely;
• protect the privacy and independence of the individual.
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Access to Individuals with Limited English
Proficiency
Language Assistance Services: include—
• oral language assistance through a qualified interpreter or
bilingual staff member,
• written translation of documents and websites by a
qualified interpreter, and
• taglines in non-English languages in plan communications
indicating the availability of language assistance services
free of charge.
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Access to Individuals with Limited English
Proficiency
A covered entity:
• Must offer a qualified interpreter for an individual with limited
English proficiency when oral interpretation “is a reasonable step to
provide meaningful access for the individual” and
• Cannot require the individual to provide their own interpreter.
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Access to Individuals with Limited English
Proficiency
A covered entity is not permitted to allow an individual to
rely on an adult or child acquaintance to interpret or
facilitate communication, except in cases of:
• emergency involving an imminent threat to the safety or
welfare of an individual or the public and where no
qualified interpreter is available; or
• when specifically requested by the individual and
appropriate under the circumstances.
A covered entity cannot rely on staff other than “qualified
bilingual/multilingual staff” to communicate directly with
individuals with limited English proficiency.
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Specific Compliance Provisions
As a condition of any application for federal financial
assistance, a covered entity must submit an “assurance”
form, certifying that its health programs and activities will
be operated in compliance with Section 1557.
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Specific Compliance Provisions
Covered entities must provide nondiscrimination notices
identifying:
• Its nondiscrimination policy;
• Its policy on providing appropriate auxiliary aids and services and
how to obtain the aids and services;
• Its provision of language assistance services;
• The individual designated for investigating grievances under the its
grievance policy; and
• How to file a discrimination complaint with OCR.
These notices must be available within 90 days of July 18,
2016.
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Specific Compliance Provisions
The notices must also include taglines in the top 15
languages spoken on a state-wide basis, or the aggregate
of the top 15 language spoken in the states in which the
entity operates, indicating that language assistance
services are available free of charge
HHS published sample nondiscrimination notices and
sample taglines in the top 25 languages spoken nationally
that can be modified by the covered entity.
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Specific Compliance Provisions
Covered entities that employ 15 or more persons must
adopt grievance procedures that incorporate due process
standards and provide for the prompt and equitable
resolution of grievances alleging violations of Section 1557.
HHS published sample grievance procedures in the
appendix to the final rule.
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Specific Enforcement Provisions
The final rule’s enforcement provisions include:
• requiring covered entities to keep records and submit compliance
reports to OCR
• conducting compliance reviews and complaint investigations; and
• providing technical assistance and guidance.
• The enforcement mechanisms provide for suspension of,
termination of, or refusal to continue federal financial
assistance to a covered entity.
• In administrative and judicial actions, compensatory damages
are available for violations of §1557.
• A private right of action and compensatory damages for
violations of §1557 are also available to affected individuals,
either under existing federal law or under the final rule.
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To-Do List
A covered entity should review its current capacity to:
• Provide appropriate auxiliary aids and services, such as alternative
formats and sign language interpreters, where necessary for
effective communication.
• Provide language assistance services for individuals with limited
English proficiency.
• Make all communications and materials provided through electronic
and information technology accessible to individuals with
disabilities, unless doing so would impose undue financial or
administrative burdens on the Plan.
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To-Do List
• Designate a compliance officer to ensure compliance with
§1557.
• If applicable, adopt grievance procedures.
• Draft a nondiscrimination notice with the appropriate
taglines. (notice included in all significant publications
and communications and made available in a
conspicuous location accessible on its website).
• Draft nondiscrimination statement for “small-sized”
significant publications, with taglines in the top two
languages spoken by individuals with limited English
proficiency of the relevant State or States.
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To-Do List
Adopt a Language Access Plan.
• identifies how and under what circumstances the covered entity
will provide assistance to individuals with limited English
proficiency;
• explains how it will determine an individual’s primary language;
• identifies a telephonic oral interpretation service to access
qualified interpreters when the need arises;
• identifies a translation service to be able to access qualified
translators when the need arises;
• identifies the types of language assistance services that may
be required under particular circumstances; and
• identifies any documents for which written translations should
be routinely available
Personnel will have to be trained in accordance with the
language access plan.