Although non-discrimination protections in the workplace and in public accommodations have been around for many years, it was only relatively recently with the passage of the Affordable Care Act (ACA), namely Section 1557 of the ACA, that these same non-discrimination protections were extended to patients in the healthcare setting. Because this change is fairly recent, many healthcare providers remain unaware that they are subject to this federal law - even though it governs how they interact with and care for patients and prospective patients!
Section 1557 requires providers to offer and provide health services to patients regardless of their race, color, national origin, sex, age, or disability. It is intended to ensure equal access for anyone seeking health care in the United States, and it applies to any provider who participates in Medicare/Medicaid programs or who otherwise receives federal funding either directly or indirectly through premiums and/or cost-sharing subsidies.
Similar to the changes required of healthcare providers and other businesses with the passage of the Americans with Disabilities Act (ADA), which sought to eliminate barriers to access to healthcare for persons with physical disabilities, Section 1557 of the ACA requires health care providers to undertake the same kind of diligence to evolve their services to reach and serve all patients who seek care.
Non-discrimination, as defined by Section 1557, goes well-beyond providing facility access to the physically disabled or having a policy of non-discrimination. Section 1557 requires providers to proactively plan and implement a range of services and aids, such as:
- Providing effective interpretive services for patients with Limited English Proficiency (LEP).
- Providing care regardless of a patient’s national origin or immigration status.
- Providing treatment consistent with a patient’s gender identity.
- Providing accommodations and aides to patients who are hearing impaired.
In order to achieve compliance with Section 1557, providers should be aware of the key aspects of the non-discrimination provisions, including:
- Providing care to LEP patients. Providers must have reasonable measures in place to allow LEP patients to receive services. Providers are encouraged to develop a comprehensive language access plan to ensure equal access to care for LEP patients. Specific accommodations required are flexible, and are based on volume of LEP patients, the nature and importance of the services provided, and the resources available to the provider. This often requires use of qualified interpreters and written translations of specific medical materials. Providers cannot require LEP patients to bring their own interpreters.
- Auxiliary Aides and Services for Patients with Disabilities. Providers offer support services or aides to patients with disabilities, and give primary consideration to the patient’s choice of support services. Examples include providing qualified interpretation services or other assistive devices to assist patients who are hearing impaired. Further, Section 1557 requires that all services and information accessible through websites, healthcare kiosks, and electronic health record (EHR) systems must also be made available to persons with disabilities who are unable to access those services or information.
- Protections Regarding National Origin and Immigration Status. Although Section 1557 does not explicitly ban discrimination based on citizenship or immigration status, as opposed to national origin, it does prohibit policies related to citizenship or immigration status that disproportionally affect individuals of a particular national origin group even if those policies are not explicitly discriminatory. Examples of discriminatory policies/practices would be to assign treatment rooms based on national origin or have a requirement for patients of a certain national origin to disclose immigration status.
- Gender Identity. Though currently an issue being challenged in the courts, Section 1557 does arguably extend the protections against sex discrimination to patients based on gender identity. Accordingly, providers must give patients equal access to health programs and activities including sex-specific health services regardless of at-birth gender assignment. Providers must also provide access to bathrooms and patient rooms based on the patient’s stated gender identity. Additionally, providers are expected to eliminate any potential sexually discriminatory practices such as stereotyping expected masculine and feminine gender roles and behaviors.
- Grievance Procedure. Providers with 15 or more employees are also required to have a written grievance procedure in place that puts in place a process for receiving and investigating grievance or complaints by patients or prospective patients concerning alleged discrimination. A provider must have a designated employee to coordinate compliance.
- Posting of Notice of Compliance with Non-Discrimination Protections. Providers must publish and disseminate notices indicating that they are subject to and comply with Section 1557’s non-discrimination protections, this includes posting a notice in a prominent area within the provider’s physical location, on its homepage website, and on all “significant communications and significant publications.” Additionally, providers must publish a “tagline” that they provide language assistance services for individuals with LEP, and the tagline must be published in the top 15 non-English languages spoken by LEP patients in the state in which the provider is located (a list of each state’s top 15 non-English languages is posted by the CMS on its website here).
Healthcare providers who are subject to Section 1557’s nondiscrimination provisions should regularly review their office policies and procedures and work with legal counsel to ensure that not only appropriate and effective policies are in place to ensure compliance but that staff are regularly trained on these policies to ensure these policies are being followed.
Eric Gunderson is an attorney with the Healthcare Law practice group at Davis, Agnor, Rapaport & Skalny LLC. If you have questions about this article or other health law related matters, please contact Eric at 410.995.5800.