Hospitals, physician practices and other health care providers that receive federal financial assistance, which includes receiving reimbursement from Medicare Parts A, C and D and/or Medicaid, are reminded to post new non-discrimination notices required under the Patient Protection and Affordable Care Act (the “ACA”).
While the prohibition on discrimination has been in effect since the enactment of the ACA in 2010 (and had already been codified in some civil rights laws), regulations have recently been implemented (the “Final Rule”) that impose additional requirements on the subject entities, including, effective October 16, 2016, the requirement to provide written notice that clearly informs individuals of their rights.
In particular, Section 1557 of the ACA provides that individuals may not be subjected to discrimination on the basis of race, color, national origin, disability, sex or age by any “health program or activity,” any part of which receives “federal financial assistance.”
- “Health program or activity” is defined to include a hospital, health clinic, group health plan, health insurance issuer, physician’s practice, community health center, nursing facility, residential or community-based treatment facility, or other similar entity, among others.
- “Federal financial assistance” includes grants, loans, credits, subsidies, contracts (including contracts of insurance) or any other arrangements by which the federal government provides assistance in the form of funds. Examples of recipients of federal financial assistance include hospitals that receive Medicare Part A reimbursement, physicians receiving Medicaid payments or “meaningful use” payments and community health centers that receive grant awards from the Health Resources and Services Administration. The term does not include payments under Medicare Part B.
What Must the Notice Contain?
The notice must include a statement that the entity does not discriminate on the prohibited bases and must inform individuals with disabilities and individuals with limited English proficiency (“LEP”) about their right to receive communication assistance. In addition, the notice must contain taglines (i.e., short statements that indicate the availability of language assistance services free of charge) in at least the top 15 languages spoken by individuals with LEP in the state to alert them of their protections under the law. The notice itself, however, need only be provided in English and the standards in the Final Rule are flexible and context-specific (so, for example, an entity serving a population with a concentrated number of individuals with LEP may need to provide a broader scope of language assistance services that an entity located in a less diverse area).
The Final Rule also requires that the notice include information about how an individual can file a discrimination complaint with the Office of Civil Rights, and, if the entity employs 15 or more persons, the notice must provide information about how to file a grievance procedure with the entity and the name and contact information of at least one employee designated to ensure compliance with Section 1557 of the ACA and the Final Rule.
Where Must the Notice be Posted?
The non-discrimination notice and taglines must be included in three locations:
- In “significant publications” and “significant communications” targeted to beneficiaries, enrollees, applicants and members of the public. Neither “significant publications” nor “significant communications” is defined in the Final Rule, but the preamble to the Final Rule states that documents intended for the public (such as outreach, education and marketing materials) as well as written notices to an individual pertaining to rights or benefits would be examples of “significant publications” and “significant communications.” For small-sized publications, such as postcards and trifold brochures, the full non-discrimination notice need not be provided; instead, a shorter non-discrimination statement is permissible along with taglines in only the top two non-English languages spoken by individuals with LEP in the state. Entities may exhaust their current publications rather than do a special printing to include the new notice.
- In conspicuous physical locations where the entity interacts with the public; and
- In a conspicuous location on the entity’s website accessible from the home page.
An entity may combine the content of the non-discrimination notice with the content of other notices if the combined notice clearly informs individuals of their rights under Section 1557 of the ACA and the Final Rule.
The Department of Health and Human Services offers guidance and resources to help covered entities comply with the new notice obligations, including FAQs; a sample notice of non-discrimination; a list of the top 15 languages (other than English) spoken in each state; and taglines translated into these languages.