Nondiscrimination Policy Updates; HHS Final Rule, “Nondiscrimination in Health Programs and Activities” Implementing Section 1557 of the ACA

 

To:	Chief Executive Officers, Hospital and Health System Counsel, and Chief Nursing Officers
From:	Zosia Stanley, JD, MHA, Policy Director and Gavin Keene, Legal Extern
Staff contact:	Zosia Stanley, ZosiaS@wsha.org or (206) 216-2511

 

Purpose

This bulletin will help your hospital comply with the final nondiscrimination rule implementing Section 1557 of the federal Affordable Care Act (ACA) (45 C.F.R. §§ 92.1-92.303 81 Fed. Reg. 31376-31473 (2016).) Section 1557 prohibits discrimination on the grounds of race, color, national origin, sex, age, or disability in certain health programs and activities, including hospitals. The final rule seeks to coordinate existing federal non-discrimination laws, regulations, and policy in the health care context. The rule also set forth important protections for individuals with disabilities and enhanced language assistance for people with limited English proficiency. The final rule went into effect July 18 and will be enforced by the Office for Civil Rights (OCR).

About two years ago, in response to new posting requirements from the Washington State Department of Health, WSHA developed a model nondiscrimination policy. WHSA has revised this policy, with updates to comply with Section 1557 of the Affordable Care Act. The revised model policy is attached at the end of this bulletin.

Applicability/Scope

The final rule applies to all hospitals, as well as other covered entities that operate a health program or activity that receives federal financial assistance under programs operated by HHS. Covered entities are not required to comply with the final rule if compliance would violate federal protections for religious freedom or conscience. Additionally, the final rule does not apply to employment discrimination.

Recommendation

WSHA recommends that all hospitals review the final rule and revised model nondiscrimination policy and, as required, revise applicable policies and procedures to ensure that they comply with the anti-discrimination rules outlined in the final rule.

Overview

Below is a brief summary of the main areas of the final rule and resources to assist hospitals with compliance.

Protection Against Sex Discrimination

Protections in the final rule apply broadly to sex discrimination, including sex, pregnancy, childbirth, gender identity and sexual stereotyping. The rule requires women to be treated equally with men in the health care they receive and prohibits the denial of health care services and health coverage based on an individual’s sex. Covered entities, including hospitals, must treat individuals consistent with their gender identity, including access to facilities, and may not categorically exclude or limit health care services related to gender transition. A summary of the protections against sex discrimination is available here.

Protection for Individuals with Limited English Proficiency

The final rule requires hospitals to take reasonable steps to provide meaningful access to those with limited English proficiency (LEP) likely to be encountered or served by the hospital. This includes reasonable steps to provide language assistance services to LEP individuals, at no charge to the individual, in order to ensure meaningful access to all health care programs and activities by those individuals. Hospitals must also post a notice which informs LEP individuals about the communication assistance they offer. A summary of the protections for LEP individuals is available here.

Protection for Individuals with Disabilities

The final rule requires covered entities, including hospitals, to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others. This includes making programs and activities provided through electronic and information technology accessible to individuals with disabilities. Hospitals need to provide appropriate auxiliary aids and services to facilitate effective communication with individuals with disabilities and access to health care programs and activities. In addition, Section 1557 incorporates the 2010 Americans with Disabilities Act Standards for Accessible Design as the standards for physical accessibility of new construction or alteration of buildings and facilities. A summary of the protections for individuals with disabilities is available here.

Next Steps

Hospitals should take note of several specific requirements in the rules. By October 16, 2016 (90 days after the implementation of the final rule) hospitals must:

Designate a Responsible Employee

Each hospital must designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Section 1557.

Adopt Grievance Procedures

Each hospital must adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of grievances alleging any action that would be prohibited by Section 1557.

Provide Notices, Including in Non-English Languages

• Post notices of nondiscrimination at the facility (in conspicuous places) in English and the top 15 languages spoken by LEP individuals in Washington State. See below for a list of these languages.
• Post taglines at the facility (in conspicuous places) alerting individuals with limited English proficiency of the availability of language assistance services. The taglines must be provided in the top 15 languages spoken by LEP individuals in Washington state.
• Include a non-discrimination statement and tagline alerting LEP of the availability of language assistance services in English and the top 15 languages spoken by LEP individuals in Washington State in all significant publications and communications targeted to members of the public.
• Include a non-discrimination statement and tagline alerting LEP individuals of the availability of language assistance services in English and at least the top two languages spoken by LEP individuals in Washington State in all small-sized publications and communications targeted to members of the public, including postcards and tri-folds.The U.S. Department of Health & Human Services (HHS) has selected the US Census Bureau’s American Community Survey database be the source to determine the top 15 languages for each state.[1] The following are the top 15 non-English languages spoken in Washington State according to that data source: 

 

1. Spanish	2. Vietnamese	3. Chinese
4. Korean	5. Russian	6. Tagalog
7. Ukrainian	8. Japanese	9. Mon-Khmer, Cambodian
10. Amharic	11. Cushite	12. Cantonese
13. Mandarin	14. Panjabi	15. Arabic

 

To reduce burden and costs, HHS Office of Civil Rights has translated a sample notice of nondiscrimination, statement of nondiscrimination, and taglines for use by providers into 64 languages. These translated resources are available online.

• The HHS webpage provides a summary of the final rule and links to additional resources, including an FAQ.
• The complete text of the final rule is available here.
• HHS Office of Civil Rights downloadable sample translated materials are available here.
• HHS training materials to help supplement covered entities’ trainings on their internal policies and procedures are available here.

 

Attachment: Model Policy

Model Patient Nondiscrimination Policy

Scope: This policy applies to all members of the [Insert Hospital Name] workforce, including employees, medical staff members, contracted service providers, and volunteers, and to all vendors, representatives, and any other individuals providing services to or on behalf of [Insert Hospital Name] (“Hospital Personnel”).

Purpose:   To ensure that all patients and visitors of [Insert Hospital Name] are treated with equality, in a welcoming, nondiscriminatory manner, consistent with applicable state and federal law.

Policy:   [Insert Hospital Name] is dedicated to providing services to patients and welcoming visitors in a manner that respects, protects, and promotes patient rights. [Insert Hospital Name] will provide equal access to its facilities and services irrespective of age, race, color, creed, ethnicity, religion, national origin, marital status, sex, sexual orientation, gender identity or expression, disability, association, veteran or military status, or any other basis prohibited by federal, state, or local law. Equal access includes physical accommodations for disabled persons, nondiscriminatory delivery of benefits, and reasonable aid in accessing electronic health programs.

Procedure:

1. Nondiscrimination. Hospital Personnel will treat all patients and visitors receiving services from or participating in other programs of [Insert Hospital Name] and its affiliated clinics with equality in a welcoming manner that is free from discrimination based on age, race, color, creed, ethnicity, religion, national origin, marital status, sex, sexual orientation, gender identity or expression, disability, association, veteran or military status, or any other basis prohibited by federal, state, or local law.
2. Notice. Hospital Personnel will provide notices to patients regarding this Nondiscrimination Policy and [Insert Hospital Name]’s commitment to providing access to and the provision of services in a welcoming, nondiscriminatory manner. [Insert Hospital Name] will provide notices pursuant to Section 1557 of the Patient Protection and Affordable Care Act 
3. Reasonable Accommodations. Hospital Personnel will inform patients of the availability of and make reasonable accommodations for patients consistent with federal and state requirements. This includes, for example, informing patients of their right to appropriate auxiliary aids and services such as qualified language interpreters for non-English speaking patients and sign language interpreters for hearing-impaired patients and how to obtain these aids and services. Aids and services will be provided 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 or to provide meaningful access to individuals with limited English proficiency.
4. Visitation Rights. Hospital Personnel will afford visitation rights to patients free from discrimination based on age, race, color, creed, ethnicity, religion, national origin, marital status, sex, sexual orientation, gender identity or expression, disability, association, veteran or military status, or any other basis prohibited by federal, state, or local law and will ensure that visitors receive equal visitation privileges consistent with patient preferences. At the time patients are notified of their patient rights, Hospital Personnel will also inform each patient, or the patient’s support person, including the patient’s attorney in fact, when appropriate, of the patient’s visitation rights, including any clinical restriction on those rights, and the patient’s right, subject to the patient’s consent, to receive visitors whom the patient designates, free of discrimination based upon age, race, color, creed, ethnicity, religion, national origin, marital status, sex, sexual orientation, gender identity or expression, disability, association, veteran or military status, or any other basis prohibited by federal, state, or local law. Such visitors include a spouse, registered domestic partner (including same-sex registered domestic partner), another family member, friend, or a legal representative of the patient, such as an attorney in fact. Hospital Personnel will also notify patients of their right to withdraw or deny such consent at any time. Hospital Personnel will afford such visitors equal visitation privileges consistent with the patient’s preferences.
5. Provision of Services. Hospital Personnel will determine eligibility for and provide services, financial aid, and other benefits to all patients in a similar manner, without subjecting any individual to separate or different treatment on the basis of age, race, color, creed, ethnicity, religion, national origin, marital status, sex, sexual orientation, gender identity or expression, disability, association, veteran or military status, or any other basis prohibited by federal, state, or local law.
6. Complaints.
   1. Any person who believes that he, she, or another person has been subjected to discrimination which is not permitted by this Policy, may file a complaint using [Insert Hospital Name]’s complaint and grievance procedure, which will provide prompt and equitable resolutions of grievances.
   2.  Any Hospital Personnel receiving a patient or visitor discrimination complaint will advise the complaining individual that he or she may report the problem to [insert name and contact information] and file a complaint without fear of retaliation.
   3.  Hospital Personnel are prohibited from retaliating against any person who opposes, complains about, or reports discrimination, files a complaint, or cooperates in an investigation of discrimination or other proceeding under federal, state, or local anti-discrimination law.
7. Compliance. [Insert Hospital Name]’s [Corporate Compliance Officer/Patient Representative or designee] is responsible for coordinating compliance with this Policy, including giving notice to and training all Hospital Personnel on this Policy. [Insert Hospital Name] will designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this policy and under Section 1557 of the Patient Protection and Affordable Care Act, including the investigation of any grievance.

[1] Use Excel sheet titled “Detailed Languages Spoken at Home and Ability to Speak English for Populations 5 Years and Over for States: 2009 – 2013.”