IMMEDIATE ACTION REQUIRED: NEW ACA NONDISCRIMINATION RULE

Any entity that operates a health program or activity and receives financial assistance from Medicare or Medicaid (which includes skilled nursing facilities, home health agencies and hospices) must now comply with the final rule implementing section 1557 of the ACA.
Compliance with the new rule requires covered entities to take numerous steps immediately, including revising internal policies and procedures, modifying all significant communications to patients and residents, posting new notices, updating the entity’s website, and designating a 1557 responsible employee.
Unless noted otherwise, covered entities were required to be in compliance by July 28, 2016.

On July 28, 2016, the final rule implementing section 1557 of the Patient Protection and Affordable Care Act (“ACA”) became effective. A complete copy of the final rule is available here. The final rule applies to all “covered entities,” which are defined as any entity that operates a health program or activity, any part of which receives federal financial assistance. Federal financial assistance includes Medicare and Medicaid, but does not include entities or providers that only bill Medicare Part B. Entities such as skilled nursing facilities, home health agencies, hospitals, and hospices that receive Federal financial assistance from Medicare and Medicaid are considered “covered entities” and are bound by this new final rule.

The final rule puts numerous new requirements on covered entities that require immediate action. If you have any questions regarding the final rule, or you would like to purchase ROLF’s Section 1557 updated policies, notices and/or admission materials, please do not hesitate to contact us.

Sex Discrimination. The final rule prohibits covered entities from discriminating on the basis of sex and requires treatment of individuals consistent with their gender identity in federally funded healthcare programs. Previously, civil rights laws enforced by HHS broadly barred discrimination based only on race, color, national origin, disability or age. This change means that a covered entity may not deny or limit health services that are ordinarily or exclusively available to individuals of one gender based on the fact that the individual’s sex assigned at birth, gender identity, or gender otherwise recorded in the medical record is different from the one to which such health services are ordinarily available.
- Action Steps
  - Covered entities should review internal non-discrimination policies and practices to ensure non-discrimination on the basis of an individual’s sex or gender identity.
  - Covered entities should modify their admission policies to address sex and gender identity discrimination.
Responsible Employee. The final rule requires covered entities with 15 or more employees to designate a “responsible employee” to coordinate the covered entity’s compliance with the final rule.
- Action Steps
  - Covered entities that employ 15 or more employees should designate and train a responsible employee.
  - Covered entities that employ 15 or more employees should modify non-discrimination policies to discuss and appropriately identify the responsible employee where applicable.
Grievance Procedures. The final rule requires covered entities with 15 or more employees to adopt grievance procedures governing section 1557 compliance. The grievance procedures must incorporate appropriate due process standards and allow for the prompt and equitable resolution of compliance, concerns, and actions prohibited by section 1557 of the ACA.
- Action Steps
  - Covered entities that employ 15 or more employees should modify existing grievance procedures to include the new requirements of section 1557.
New Notices & Taglines. The final rule requires covered entities, regardless of the number of people they employ, to notify individuals of their rights under section 1557 of the ACA in all “significant publications and significant communications,” with special rules applying to small sized significant communications. The notice must include the following information: 1) that the covered entity does not discriminate on the basis of race, color, national origin, sex, age or disability; 2) that the covered entity provides appropriate auxiliary aids and services, including qualified interpreters for individuals with disabilities and information in alternate formats, free of charge and in a timely manner, when such aids and services are necessary to ensure an equal opportunity to participate to individuals with disabilities; 3) that the covered entity provides language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner, when such services are necessary to provide meaningful access to individuals with limited English proficiency; 4) how an individual can obtain the aids and services; 5) an identification of, and contact information for, the responsible employee of the covered entity; 6) the availability of the grievance procedure and how to file a grievance, if applicable; and 7) how to file a discrimination complaint with the Office of Civil Rights. The final rule also requires covered entities to include with such notice, taglines in at least the top 15 languages spoken by individuals with limited English proficiency in the applicable state. In certain small-sized publications, a less detailed notice, and 2 taglines, must be included instead.
- Action Steps
  - All covered entities should modify existing notices of nondiscrimination to include the requirements described above.
  - Covered entities should perform an internal review and determine all significant communications (such as admission materials). Covered entities should modify the significant communications to include the required notice by October 16, 2016.
  - Covered entities should determine the top 15 languages spoken by individuals with limited English proficiency in the state in which they perform services and include such taglines in any significant communication as required by the final rule by October 16, 2016.
Posting Notices. The final rule requires that by October 16, 2016, covered entities, regardless of the number of people they employ, must post the notice described above in a conspicuous physical location of the entity and in a conspicuous location on the covered entity’s website, accessible from the website’s home page.
- Action Steps
  - Covered entities should post the required notice in a conspicuous physical location of the entity by October 16, 2016.
  - Covered entities should post the required notice on its website, accessible from the home page, by October 16, 2016.
Auxiliary Aides. The final rule requires all covered entities, regardless of the number of people they employ, to provide appropriate auxiliary aides and services to persons with impaired sensory, manual, or speaking skills where necessary to afford such persons an equal opportunity to benefit from services. Auxiliary aides include qualified interpreters and information in alternate formats, free of charge, in a timely manner.
- Action Steps
  - Covered entities should review internal policies and practices regarding auxiliary aides to ensure auxiliary aides are provided to individuals free of charge and in a timely manner.
Interpreters. When a situation calls for oral interpretation with a person with limited English proficiency, the final rule requires a covered entity to offer a qualified interpreter. The final rule now prohibits covered entities from: 1) requiring an individual with limited English proficiency to provide his or her own interpreter; 2) relying on an adult accompanying an individual with limited English proficiency to interpret or facilitate communication, except in specific situations; 3) relying on a minor child to interpret or facilitate communications, except in limited specific situations; or 4) or relying on staff other than qualified bilingual or multilingual staff to communicate directly with individuals with limited English proficiency. The final rule requires covered entities to only use qualified interpreters, as defined, and sets certain new standards for the use of video remote interpreting services.
- Action Steps
  - Covered entities should ensure that qualified interpreters are contracted with or on staff to provide oral interpretation when necessary.
  - Covered entities should modify existing contracts with interpreters to require interpreters to meet the qualifications now required by the final rule.
  - Covered entities should ensure that internal policies and practices regarding use of family members, friends, and staff members as interpreters do not violate the final rule and train staff on the appropriate use of interpreters.
  - Covered entities should ensure that any use of video remote interpreting services comply with the new rule.
Accessible Electronic and Information Technology. The final rule requires covered entities to ensure health programs and activities provided through electronic and information technology are accessible to individuals with disabilities, unless doing so would result in an undue financial and administrative burden or a fundamental alteration in the nature of the health programs or activities.
- Action Steps
  - Covered entities should perform an internal review and determine whether any health programs or activities are provided to patients through electronic and information technology. For example, online portals for admission, documentation or electronic billing.
  - If the covered entity uses electronic and information technology for any health programs or activities, the covered entity should ensure that the electronic or information technology is accessible to individuals with disabilities, as further described in the final rule, such as applying WCAG 2.0 AA standards.

If you have any questions regarding the new rule, please contact Aric Martin at Martin@ROLFLaw.com.

Please note that this alert is intended to be informational only, and is not intended to be nor should it be relied upon as legal advice. The actions steps set forth in this alert are considerations, are not meant to be exclusive, and cannot guarantee compliance. Rolf Goffman Martin Lang LLP will not be responsible for any actions taken or arrangements structured based upon this alert. The receipt of this alert by an organization that is not a current client of Rolf Goffman Martin Lang LLP does not create an attorney-client relationship between the recipient and the law firm.