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Final Rule Issued Regarding Discrimination by Health Care Agencies

Published:  December 8, 2016

The United States Department of Health and Human Services (HHS) issued its Final Rule implementing the prohibition of discrimination under Section 1557 of the Affordable Care Act (ACA) of 2010.  Section 1557 is the nondiscrimination provision of the ACA, which prohibits discrimination on the basis of race, color, natural origin, sex, age, or disability in certain health programs or activities.

The Final Rule becomes effective January 1, 2017, and covers any health program or activity that receives funding from HHS (such as hospitals that accept Medicare, or doctors who accept Medicaid), any health program that HHS itself administers, and health insurance marketplaces and issuers that participate in those marketplaces.

The Final Rule requires that women be treated equally with men in the health care they receive, and also prohibits the denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity, and sex stereotyping.  Covered health programs are also required to treat individuals consistent with their gender identity.

In regards to individuals with disabilities, covered entities are required to make all programs and activities provided through electronic and information technology accessible, to ensure the physical accessibility of newly constructed or altered facilities, and to provide appropriate auxiliary aids and services for individuals with disabilities.  Covered entities are also prohibited from marketing practices or benefit designs that discriminate on the basis of disability and other prohibited bases.

The Final Rule requires that covered entities take reasonable steps to provide meaningful access to each individual with limited English proficiency who is eligible to be served or likely to be encountered in their health programs and activities.  The Final Rule also encourages covered entities to develop and implement a language access plan.

If a covered entity has 15 or more employees, the entity is required to have a grievance process in place as well as a compliance coordinator.  The rule contains a model grievance procedure for covered entities.  Entities are also required to post notices of nondiscrimination, and taglines that alert individuals with limited English proficiency to the availability of language assistance services. The taglines must be posted in at least the top 15 non-English languages spoken in the State in which the covered entity is located or does business.

Covered entities are required to keep records and submit compliance checks to the Office of Civil Rights, conduct compliance reviews and complaint investigations, and provide technical assistance and guidance.  Enforcement measures include suspension, termination, or refusal to grant or continue Federal financial assistance, referral to the Department of Justice with a recommendation to bring proceedings to enforce any rights of the United States, and any other means authorized by law.  The Final Rule also recognizes that an individual can bring a civil action regarding a Section 1557 violation.

If you have any questions regarding the Final Rule, Section 1557, the ACA, or discrimination claims, please contact the attorneys at Royal, P.C.

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