Section 1557 of the Patient Protection and Affordable Care Act (ACA) prohibits any health program or activity that receives federal funding (currently limited to federal funding from the Department of Health and Human Services (HHS)) from discriminating against an individual on the basis of race, color, national origin, sex, age or disability.  Notably, HHS has described Section 1557 as the first civil rights law banning discrimination on the basis of sex in the provision of healthcare services, which includes discrimination based on gender identity, gender expression and transgender status.

While Section 1557 has technically been in effect since the passage of the ACA in 2010, HHS’ Office of Civil Rights (OCR) released final regulations in May of this year, finalizing some key compliance requirements.  Many of the new procedural requirements introduced by the final regulations went into effect on July 18, 2016.  However, perhaps the most significant requirement – the requirement to provide and post nondiscrimination notices – becomes effective on October 16, 2016 (a Sunday).¹

Covered Entities Must Provide Nondiscrimination Notices No Later than October 16, 2016

Who are covered entities?

The Section 1557 final regulations apply only to “covered entities,” which include health programs or activities that provide or administer health-related services or health-related insurance coverage and provide assistance in obtaining health-related services or health-related insurance coverage, any part of which receives HHS funds.  For example, a “covered entity” subject to this rule could be an employer-sponsored health plan that receives funding from HHS, or, if a business is principally-engaged in providing or administering health services or health insurance coverage (e.g., a hospital, health clinic or nursing home), the business is considered a covered entity with respect to all of its activities, including both its business operations and the health plans it offers to employees.

Who are the notices directed to and what information should be included?

Much like the existing notice requirements found in other nondiscrimination statutes, such as Title VI, Title IX, Section 504 of the Rehabilitation Act and the Age Act, the final Section 1557 regulations include a requirement that each covered entity take initial and continuing steps to inform beneficiaries, enrollees, applicants and members of the general public of the following:

1. The covered entity does not discriminate on the basis of race, color, national origin, sex, age or disability in its health programs and activities;
2. The covered entity offers auxiliary aids and services free of charge to those with disabilities;
3. The covered entity offers language assistance services free of charge to those with limited English proficiency;
4. Information on how auxiliary and language services may be obtained;
5. Contact information of the covered entity’s Section 1557 compliance officer;
6. The covered entity’s Section 1557 grievance procedures; and
7. Information on how to file a discrimination complaint with OCR.

The nondiscrimination notice can be in English but must also contain shorter “taglines” in the top 15 non-English languages spoken by individuals with limited English proficiency (LEP) in the state(s) in which the covered entity operates,¹ to alert LEP individuals to the availability of language assistance services.

How should the notice be provided?

The notice and accompanying taglines must be printed in a “conspicuously-visible” font size and must appear in:

1. Conspicuous physical locations, such as places where the entity interacts with the public (e.g., a waiting room for patients);
2. In “significant” publications and communications targeted to beneficiaries, enrollees, applicants and members of the public; and
3. In a conspicuous location on the covered entity’s website accessible from the homepage. In-language links for each of the 15 relevant languages must also be conspicuous and accessible from the homepage.

For small-sized “significant” communications and publications, such as postcards or tri-fold brochures, the final rule requires entities to include a nondiscrimination statement and taglines in the top two languages spoken by LEP individuals in the relevant state(s).

While the final regulations do not define what “significant” communications and publications are, HHS has indicated informally that significant communications and publications may include, but not be limited to:

1. Patient handbooks;
2. Outreach publications;
3. Marketing materials;
4. Consent and complaint forms; and
5. Written notices pertaining to rights or benefits requiring a response from an individual.

Section 1557 Nondiscrimination Notices Introduce More ACA Complexity

The requirements surrounding Section 1557 nondiscrimination notices can be confusing, especially given the need to determine the top 15 languages spoken by those with LEP in the state(s) in which your business operates.  Please reach out to your Bass, Berry & Sims attorney for help navigating the requirements of Section 1557 and other areas of ACA compliance.

¹ As a practical matter, covered entities may want to provide the notice by the Friday before the deadline (i.e., October 14, 2016) in order to ensure compliance.

² Entities with operations in multiple states can aggregate the number of LEP individuals in each state rather than calculate the top 15 for each individual state.