Section 1557 Summary
Complying with ACA Section 1557 Non-Discrimination Regulations
VMS Summary & FAQs (Updated August 2021)
In May 2016, the US Department of Health and Human Services (HHS) issued a Final Rule implementing a prohibition on discrimination by health care services found in Section 1557 of the Affordable Care Act (ACA). On June 12, 2020, HHS OCR announced a revision to the final rule. There has been substantial controversy and litigation regarding the rule, especially the protections for sex discrimination, however the requirements regarding language access and disability discrimination are more settled.
Section 1557 builds on long-standing Federal civil rights laws that have already applied to most health care practices, such as Title VI of the Civil Rights Act. The requirements of the Section 1557 Final Rule and Title VI are consistent and should generally be reviewed together – though Section 1557 provides further detail in several areas.
Generally, Section 1557 and the Final Rule prohibit “discrimination under any health program or activity receiving Federal financial assistance…on the grounds of race, color, national origin, sex, age or disability….”
Does the rule apply to me?
The Final Rule applies to “any health program or activity, any part of which is receiving Federal financial assistance.” HHS expects that this applies to almost all physician practices in the nation as Federal financial assistance includes, but is not limited to: state Medicaid payments, “meaningful use” payments, National Health Service Corp funding, NIH research funding and CMS gain-sharing payments. Physician practices that exclusively receive Medicare Part B payments are not included, but practices should conduct a thorough review of their funding sources and consult an attorney before deciding they are exempt.
When does the law go into effect?
Section 1557 has been in effect since the passage of the ACA and the Final Rules went into effect in 2016, with an update in 2020.
What does the law require?
The law clarifies and extends discrimination protections on the basis of race, color, national origin, sex, age or disability.
The 2016 final rule included a number of procedural requirements, which were removed in the revised 2020 rule and so are no longer required as of August 2020. The provisions no longer in effect include designating a compliance coordinator, adopting grievance procedures, posting a notice of non-discrimination, and including tag lines in non-English languages about non-discrimination in significant communications.
What changes should I know about to non-discrimination/Language Access Laws
The Final Rule also clarifies and strengthens various non-discrimination protections that apply in the health care setting. Among other things, the law addresses:
- Limited English Proficiency/Requirements for Interpretation Services. Most health care providers have already been required to provide language access services to patients or prospective patients with limited English proficiency. Under this Final Rule, all covered practices are required to “take reasonable steps to ensure meaningful access to…activities by limited English proficient individuals.”
- Practices still have flexibility to determine how to provide meaningful access and which type of interpretation (verbal) or translation (written) services to provide. For example, for verbal interpretation, practices can consider options including hiring bilingual staff, using in-person interpreters, phone interpretation services or other remote services. Written translation can range from translation of an entire document to translation of a short description of the document to an oral translation by an interpreter.
- Language access services must be provided free of charge, be accurate and timely, and protect the privacy and independence of the patient; a patient cannot be required to provide his or her own interpreter.
- To determine whether a practice is in compliance, OCR may assess how an entity balances the following four factors: the number or portion of LEP individuals served or likely to be encountered in the service population; the frequency with which LEP individuals come in contact with the program; the nature and importance of the service; and the resources available to the entity and costs.
- The 2020 revised rules removed reference to language access plans. Language access plans are documents that outline how an entity will identify and serve LEP individuals. While not required, a detailed model that can be scaled down to your practice is available here.
- Ensure you are using qualified interpreters & translators.
- Bilingual staff, interpreters and translators must all be qualified: adhere to ethical principles, including confidentiality; demonstrate proficiency in the appropriate languages; and be effective, accurate and impartial.
- Adult family can only be used in emergencies involving an imminent threat to health or safety and when no other interpreter is available OR if the patient specifically requests the family member and it is appropriate under the circumstances. The rule clarifies that in many circumstances family members are NOT competent to provide quality, accurate interpretation. Minor children can only be relied on if there is an imminent threat to safety or health.
- Remote audio interpretation must be high quality without lags, pauses or interruption
- Interpreter resources available in Vermont are included on the VMS website here.
- Disability Discrimination:
- Practices must take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others. This includes providing appropriate auxiliary aids and services, such as:
- Methods of making aurally delivered information available to individuals who are deaf or hard of hearing such as video remove interpreting, TTY videophones, videotext displays or assistive listening systems
- methods of making visually delivered materials available to individuals who are blind or have low vision such as readers, taped texts, audio recordings or Braille materials
- Interpreters must be provided free of charge, in a timely manner and interpret effectively, accurately and impartially
- Online services must be accessible, unless doing so would result in an undue financial burden. This means that patient portals, online forms, online appointment systems, electronic billing and other online services must be accessible to individuals with disabilities, such as vision impairments, unless doing so would impose an undue financial burden to the practice, in which case the covered entity shall provide information in a format other than an electronic format.
- Facilities or programs that are constructed or altered after January 18, 2018 must comply with the 2010 ADA Standards for Accessible Design
- Sex Discrimination
- The Section 1557 rules establish that individuals cannot be denied health care or services based on their sex. Notably, this is the first federal civil rights law to prohibit discrimination in health care based on sex.
- This provision has been the subject of extensive debate and litigation, especially over whether “discrimination on the basis of sex” includes sexual orientation and gender identity.
- Consistent with recent Supreme Court decisions, beginning May 10, 2021, OCR will interpret and enforce Section 1557’s prohibition on discrimination on the basis of sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity.
- For more information see OCR’s Section 1557 website and discussion on Health Affairs.
Where can I find more information?
HHS OCR has a website dedicated to Section 1557, available here. See also a Kaiser Family Foundation issue brief comparing the 2016 and 2020 rules and pending lawsuits here. You can also contact Jessa Barnard at the VMS at firstname.lastname@example.org.