September 16, 2016
Area(s) of Interest: Licensing & Regulatory Issues
The U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) recently finalized new nondiscrimination rules intended to advance health equity and reduce health care disparities. Under the rule, which implements section 1557 of the Affordable Care Act, individuals are protected from discrimination in health care on the basis of race, color, national origin, age, disability and sex, including discrimination based on pregnancy, gender identity and sex stereotyping.
This rule applies to those who provide or administer health-related services or insurance coverage and receive "federal financial assistance." Federal financial assistance includes Medicare, Children's Health Insurance Program, Medicaid, meaningful use payments, HHS grants, Centers for Medicare and Medicaid Services gain-sharing demonstration projects, federal premium and cost-sharing subsidies, etc.
The rule does not apply to physicians who participate only in Medicare Part B, unless they are also receiving meaningful use incentive payments.
Covered physicians must comply with the following requirements:
- By October 16, post a notice of nondiscrimination and taglines in the top 15 languages spoken by individuals with limited English proficiency. (Note that this date has been corrected since this story was first published.)
- Designate a compliance coordinator and adopt grievance procedures (applicable to group practices with 15 or more employees)
- Submit an assurance of compliance form to OCR
The rule also encourages covered entities to develop and implement a language access plan to ensure they are prepared to take reasonable steps to provide meaningful access to individuals who may require assistance.
This final regulation does not, however, change current law under the Title VI regulations, which requires that any program or activity (including health care professionals) that receives federal funds must take reasonable steps to ensure meaningful access to their activities by persons with limited-English proficiency. Physicians should already be in compliance with the existing Title VI provisions required under current law, which is outlined in the California Medical Association's (CMA) On-Call document #6003, "Language Interpreters."
Physicians should note that in addition to administrative enforcement mechanisms, such as loss of federal financial assistance, individuals are permitted to bring individual or class action violation claims directly against physicians in federal court.
To assist with implementation, OCR has translated into 64 languages a sample notice and taglines for use by covered entities. In addition, OCR has published a summary of the rule, factsheets on key provisions and a list of frequently asked questions.
CMA has sought guidance from the California Department of Health Care Services to determine what languages California physicians must post for the nondiscrimination notice. As additional information becomes available, CMA will provide more detailed instructions about how physicians may comply with this rule.