This is a reminder that beginning October 16, 2016, Covered Entities (as defined below) are required to comply with certain notice requirements under Section 1557 of the Affordable Care Act (“ACA”). Section 1557 of the ACA further expands long-standing and familiar federal civil rights laws by generally providing that an individual shall not, on the basis of race, color, national origin, sex, age or disability, be excluded from participation in, be denied benefits of or be subjected to discrimination under any health program or activity, any part of which is receiving federal financial assistance.
Who is a Covered Entity?
A Covered Entity is any entity that:
- Operates a health program or activity that receives federal financial assistance;
- Administers a health care program or activity that is established under Title I of the ACA; or
- Is administered by the U.S. Department of Health and Human Services.
Examples of Covered Entities include:
- Hospitals
- Health clinics
- Health insurance issuers
- State Medicaid agencies
- Physicians who receive Medicaid payments or electronic health records incentive payments
What are the notice requirements?
An affected covered entity must notify individuals of its nondiscrimination obligations by complying with the following notice requirements for its website, significant communications and publications, and physical location:
- Post a nondiscrimination notice in English that includes the below seven elements (Note: Smaller significant communications and publications only require the first element listed below).
- The Covered Entity does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities;
- The Covered Entity will provide appropriate auxiliary aids and services free of charge to individuals, when needed;
- The Covered Entity will provide language assistance services free of charge, when needed;
- Information on how an individual can obtain the auxiliary aids and language assistance services;
- The contact information for the individual responsible for the Covered Entity’s compliance with Section 1557, if applicable;
- Information regarding the grievance procedure for any action prohibited by Section 1557, if applicable; and
- Information on how to file a discrimination complaint with the Office for Civil Rights.
- The Covered Entity does not discriminate on the basis of race, color, national origin, sex, age, or disability in its health programs and activities;
- Post taglines in at least the top 15 non-English languages spoken by individuals with limited English proficiency of the relevant state(s). Note: Smaller significant communications and publications only require the top two non-English languages. Taglines are short statements that inform individuals with limited English proficiency of the availability of language assistance services free of charge.
- Ensure that the above notice and taglines are in conspicuously-visible font sizes, posted in conspicuous locations on the Covered Entity’s website, significant communications and publications, and conspicuous physical locations where the Covered Entity interacts with the public.
What are examples of larger and smaller significant communications and publications?
Examples of larger significant communications and publications include, but are not limited to a Covered Entity’s marketing materials, notices and communications sent to enrollees/patients. Examples of smaller significant communications and publications include, but are not limited to trifold brochures and postcards.
What resources are available?
The Department of Health and Human Services has provided sample notices and taglines on its website. The Office for Civil Rights will determine the top non-English languages by State that may be used to meet the taglines requirement.
What are the penalties for noncompliance?
Enforcement of Section 1557’s requirements is the responsibility of the Office for Civil Rights. Noncompliance may lead to suspension or termination of federal financial assistance. In addition, Section 1557 provides for private enforcement by allowing an individual to bring a private cause of action.
April Kirkley is an associate in Thompson Coburn’s Health Care group.