1. Coppersmith Brockelman PLC
Section 1557 of the Affordable Care Act: Rules on Nondiscrimination in Health Care
Karen Owens
Coppersmith Brockelman PLC
Janice Dinner
Banner Health
This presentation is for general information purposes only, and should not be construed as legal advice or a legal opinion regarding any particular facts or circumstances.  Please consult with us directly for advice and information concerning fact-specific situations and any specific legal questions you may have.

2. Background and Applicability

3. Background Rules implement ACA Section 1557
Section 1557 prohibits discrimination based on race, color, national origin, sex, age, or disability in certain health programs
Section 1557 has been enforced since 2010
None of the recent ACA repeal bills would have repealed Section 1557
Rules issued in May 2016; now
under revision

4. Effective dates Compliance deadlines in regulations
Generally applicable 7/18/16
Changes in provisions relating to health insurance or group health plan benefit design: Effective first day of first plan year beginning on or after 1/1/17
Notice requirement effective 10/16/16

5. Applicability of the 1557 rules
Who has to follow the rules?
Health programs/activities that receive any federal financial assistance from HHS
E.g., hospitals that accept Medicare
Applies to hospitals’ employee health plans as well
But Medicare Part B is not “federal financial assistance”
Health programs/activities administered by an ACA Title I entity
ACA Title I entities: Health insurance marketplaces (state-based or federally facilitated)
Health programs/activities administered by HHS
Assurance of compliance
Applicants for federal grants, loans, contact, property, discounts, an other federal financial assistance from ADHS must submit
ASSURANCE OF COMPLIANCE WITH TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, SECTION 504 OF THE REHABILITATION ACT OF 1973, TITLE IX OF THE EDUCATION AMENDMENTS OF 1972, THE AGE DISCRIMINATION ACT OF 1975, AND SECTION 1557 OF THE AFFORDABLE CARE ACT

6. Sex Discrimination

7. Sex discrimination rules not enforced
Nationwide permanent injunction issued in Franciscan Alliance v. Burwell, 2016 WL (N.D. Texas 2016)
Regulation conflicted with Title IX’s prohibition on sex discrimination by including gender identity
“Failure to include Title IX’s religious and abortion exemptions in regulation rendered the regulation arbitrary, capricious, and contrary to law in violation of APA”
Likely success on claim of violation of Religious Freedom Restoration Act (RFRA)

8. LGBTQ protections expected to be removed
DHHS is drafting new “sex discrimination” regulations: expected to remove LGBTQ protections
“Donald Trump’s Deputies
Removing Pro-Transgender Rule
from Obamacare” May 18, 2017

9. On the other hand… Other laws may take up some of the slack, e.g.,
Title VII, Civil Rights Act of 1964
Title IX, Education Amendments of 1972

10. Sex discrimination: today’s rule
Equal program access without discrimination on the basis of sex
First federal civil rights law to address sex discrimination specifically in health programs and activities.
“Sex discrimination” includes discrimination on the basis of:
Pregnancy
False pregnancy
Termination of, or recovery from, pregnancy (but abortion is treated separately)
Childbirth and related medical conditions
Sex stereotyping
Gender identity: transgender discrimination is expressly addressed

11. Disability Discrimination

12. Disability discrimination
Incorporates existing civil rights laws, but mandates more specific requirements for accessibility
Entities must comply with specific prohibitions on discrimination under Section 504 of the Rehabilitation Act of 1973 regs.
General prohibition on discrimination
Cannot deny services or benefits on the basis of disability
Cannot discriminate on the basis of disability in providing or administering health-related insurance
Cannot deny insurance plan or policy, deny or limit coverage or claim, impose additional cost sharing, etc.

13. Disability discrimination
Effective Communication
Must take appropriate steps to ensure communications with individuals with disabilities are as effective as communications with others
Must provide appropriate auxiliary aids and services to persons with impaired sensory, manual, or speaking skills, where necessary to afford equal opportunity to benefit from a service
Buildings/Facilities
Construction or alterations started after 7/18/16 must comply with the ADA Standards for Accessible Design (28 C.F.R. § ) (unless the entity was not already subject to these standards at that time, in which case the compliance deadline is later)

14. Disability discrimination
Electronic and Information Technology
Health programs or activities provided through electronic and information technology must be accessible to individuals with disabilities
Unless it would cause undue financial and administrative burdens, or a fundamental alteration in the nature of the programs or activities
In that case, must provide information in a non-electronic format that would ensure, as much as possible, that individuals receive the benefits or services of the program/activity
Must ensure health programs and activities provided through websites comply with Title II of the ADA
Regulations implementing ADA Title II: 28 C.F.R. Part 35
DOJ SANPRM on web accessibility: 81 Fed. Reg (May 9, 2016)

15. Disability discrimination
Modifications to Policies
Must make “reasonable modifications” to policies, practices, or procedures when necessary to avoid disability discrimination, unless entity can demonstrate that making the modifications would fundamentally alter the nature of the program or activity
“Reasonable modifications” interpreted as under ADA Title II regulation

16. Accessibility for Persons with Limited English Proficiency

17. Accessibility for individuals with limited English proficiency (LEP)
Incorporates existing civil rights laws, but mandates more specific requirements for accessibility
Entities must comply with specific prohibitions on discrimination under Title VI of the Civil Rights Act of 1964 regs.
General Prohibition on Discrimination
Cannot deny services or benefits on the basis of natl. origin
Cannot discriminate on the basis of natl. origin in providing or administering health-related insurance

18. Accessibility for individuals with LEP
General Access Requirement: Entities must take reasonable steps to provide meaningful access to individuals with limited English proficiency
Language assistance services required must be:
Free
Accurate and timely
Protect the privacy and independence of the individual
Must offer qualified interpreter when oral interpretation is a reasonable step to provide meaningful access for that individual

19. Accessibility for individuals with LEP
Must use a qualified translator when translating written content
Must not require an individual to provide his or her own interpreter
Entity cannot rely on interpretation/facilitation of communication by:
an adult accompanying the individual, except in an emergency (with no qualified interpreter available) or if the individual specifically requests it and the adult agrees
a minor, except in an emergency (with no qualified interpreter available)
Staff, other than qualified bilingual/multilingual staff
Specific requirements for video remote interpreting services
OCR encourages development of a language access plan, which will be considered in evaluation of compliance

20. Accessibility for individuals with LEP
OCR Guidance (August 2016) – Top 15 languages spoken in each state
Arizona
Spanish
Navajo
Chinese
Vietnamese
Arabic
Tagalog (spoken in the Philippines)
Korean
French
German
Russian
Japanese
Persian (Farsi)
Syriac
Serbo-Croatian
Thai

21. Notice Requirements

22. Notice requirements
Must comply by October 16, 2016 (90 days after effective date)
Notice must inform reader that:
Entity does not discriminate on the basis of race, color, national origin, sex, age, or disability
Entity provides appropriate auxiliary aids and services free of charge
Entity provide language assistance services free of charge
How to obtain the aids and services
The designated responsible employee
Grievance procedure information
How to file a discrimination complaint with the OCR

23. Notice requirements
Covered entity/program must post full notice, and taglines in top 15 languages, in:
Significant publications and significant communications targeted to beneficiaries, enrollees, applicants, and the public, except for “small-sized” communications
Conspicuous physical locations where entity interacts with the public
Conspicuous location on web site, accessible from the home page

24. Notice requirements
For significant publications and significant communications that are “small-sized,” such as postcards and tri-fold brochures, entity is only required to post:
Nondiscrimination statement
Taglines in top 2 languages

25. Notice requirements
All notices must be in “conspicuously-visible font size”
Sample notice and tagline published at 45 C.F.R. Part 92, Appendices A and B
Sample notice: notice-english.pdf
Sample taglines: individuals/section-1557/translated-resources/index.html

26. Section 1557 Coordinator/
Grievance Procedures

27. Coordinator/grievance procedures
Entities/programs that employ 15 or more persons must designate a “Section 1557 Coordinator”
Coordinates compliance efforts and carries out responsibilities including investigation or grievances

28. Coordinator/grievance procedures
Coordinator also:
Adopts written grievance procedures
Include “due process standards”
Provide for “prompt and equitable resolution of grievances
Allow grievance for allegations of any violation of Section 1557/regs

29. Coordinator/grievance procedures
Appendix C to regulations: sample Grievance Procedure
Gives person 60 days after awareness of alleged violation to submit in writing; Coordinator has 30 days from filing to issue decision
All interested persons may give evidence; confidential
Appeal to Administrator/Board/etc. by letter
What about grievances involving Medical Staff processes?

30. Sources and Materials

31. Citations Section 1557 of the Affordable Care Act: 42 U.S.C. § 18116
Final regulations: 45 C.F.R. § 92.1 et seq.
Preamble to final regulations: 81 F.R
/nondiscrimination-in-health-programs-and-activities
Office for Civil Rights materials

32. Questions?