Section 1557 of the Affordable Care Act

A Civil Rights Training for Healthcare Providers and Employees of Health Programs

As of October 19, 2016, all ambulatory surgery centers were to be in compliance wit the requirements of Section 1557 of the Affordable care Act (AC). Staff education is a component of the Section 1557 requirement.

Objectives:

  • Discuss the background of Section 1557
  • Understand section 1557’s nondiscrimination requirements
  • Know the federal enforcement and Section 1557 resources
    • Review revisions to OISC policies and procedures to meet the requirements of Section 1557

Background

What is Section 1557?

Section 1557 is the nondiscrimination law in the Affodable Care Act (ACA).

By eliminating barriers that are based on discrimination, Section 1557 is important in achieving the ACA’s goals of expanding access to healthcare and coverage, eliminating barriers, and reducing health disparities.

Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disibility in certain health programs and activities.

It builds upon longstanding nondiscrimination laws and provides new civil rights protections, such as prohibiting sex discrimination in health settings.

What are Some of the Notable Provisions of Section 1557?

Section 1557 is the FIRST Federal civil rights law to broadly prohibit sex discrimination in health programs and activities.

Sex discrimination includes, but is not limited to, discrmination based on an individual’s sex, including pregnancy, related medical conditions, termination of pregnancy, gender identity and sex stereotypes.

  • Gender identity means an individual’s internal sense of gender, which may be male, female, neither, or a comination of male and female.
    • The way an individual expresses gender identity is frequently called “gender expression,” and may or may not conform to social sterotypes associated with a particular gender.
    • A transgender individual is an individual whose gender identity is different from the sex assigned to that person at birth. An individual need not have sought medical treatment or have undergone specific processes to be transgender.
  • Sex stereotypes means stereotypical notions of masculinity or femininity
    • Includes expectations that individuals will act in conformity with gender expressions associated with being male or female, such as dress, appearance, or behavior.

How Was the Public Involved in Developing Section 1557?

The Office for Civil Rights (OCR) consulted with consumers, health service providers, health insurance issuers, and other stakeholders about Section 1557.

OCR received nearly 25,000 written comments on the proposed Section 1557 regulation.

The final Section 1557 regulation was published on May 18, 2016 and reflects the public’s comments and OCR’s engagement with stakeholders.


Requirements

Who must comply with HHS’s Section 1557 Regulation?

All health programs and acvitivites that receive Federal financial assistance from HHS.

  • Federal financial assistance includes grants, property, Medicaid, Medicare Parts A, C, and D payments, and tax credits and cost-sharing subsidies under Title I of the ACA
  • Therefore, ALL staff in these types of programs and activities are resopnsible for ensuring that they do not discriminate against individuals.

The rule does not apply to employment practices such as hiring or firing, except that covered employers are responsible for their employee health benefit programs in certain circumstances.


Discrminiation Based on an Individual’s Race, Color or National Origin is Prohibited

Under Section 1557, a covered entity may not:

  • Segregate, delay or deny services or benefits based on an individual’s race, color or national origin.
    • People of every race, color and national origin are protected under the law.
    • Discrimination in healthcare settings has been prohibited for decades, however, discrimination, stereotyping and biases persist in the healthcare system.
    • The term national origin includes, but is not limited to, an individual’s, or his or her ancestor’s, place of origin (such as country), or physical, cultural, or linguistic characteristics of a national origin group
  • Delay or deny effective language assistance services to individuals with limited English proficiency (LEP)
    • An individual with LEP is an individual whose primary language is not English and who has a limited ability to read, write, speak or understand English often because they are not originally from the US.

Section 1557 protects individuals in the United States, whether lawfully or not, who experience discrimination based on any Section 1557’s prohibited bases.


Requirements for Communicating with LEP Individuals

A covered entity MUST take reasonable steps to provide meaningful access to each individual with LEP. Reasonable steps may include the provision of language assistance services, such as oral language assistance or written translations.

A covered entity MUST publish taglines, which are short statements in non-English languages, in significant publications and post in prominent locations and on its website, to notify individuals about the availability of language assistance services.

A covered entity MUST offer a qualified interpreter when oral interpretation is a reasonable step to provide an individual with meaningful access.

Where language services are required, they MUST be provided free of charge and in a timely manner.

A covered entity must adhere to certain quality standards in delivering language assistance services. A covered entity MAY NOT:

  • Require an individual to provide his or her own interpreter
  • Rely on a minor child to interpret, except in a life threatening emergency where there is no qualified interpreter immediately available
  • Rely on interpreters that the individual prefers when there are competency, confidentiality or other concerns
  • Rely on unqualified bilingual or multilingual staff
  • Use low-quality video remote interpreting services

Discrimination Based on an Individual’s Sex is Prohibited

Covered entities must:

  • Provide equal acess to health care without discrimination based on sex including gender identity or sex stereotypes
  • Treat individuals consistent with their gender identity, including with respect to access to facilities, such as bathroom and patient rooms

Discrimination Based on an Individual’s Age is Prohibited

A covered entity may not exclude, deny or limit services based on an individual’s age.

A covered entity may base its actions on age when it is a factor necessary to the normal operation, or achievement of a statuatory objective of a program.

A covered entity may also provide different treatment based on age when the treatment is justified by scientific or medical evidence or based on a specialty.


Discrimination Based on an Individual’s Disability is Prohibited

An individual may not be excluded or denied services because of a disability.

Covered entities must take the following steps, unless they would result in an undue financial burden or would fundamentally alter the program:

  • Make reasonable changes to policies, procedures and practices where necessary to provide equal access for individuals with disabilities.
    • Example: OISC must allow an individual with an anxiety disorder to wait in a seperate, quiet room if the individual is unable to wait in the patient waiting area because of anxiety
  • Make all electronic activities accessible to individuals with disabilities (i.e., electronic billing, etc.).
  • Ensure newly constructed and altered facilities are physicially accessible to individuals with disabilities.
  • Provide effective communication with individuals with disibilities, including patients and their companions

Auxiliary Aids and Services

A covered entity must provide auxiliary aids and services to individuals with disabilities free of charge and in a timely manner when necessary to ensure an equal opportunity to participate and benefit from the entity’s health programs or activities.

Auxilliary aids and services include, but are not limited to:

  • Qualified sign language interpreters
  • Large print materials
  • Text telephones (TTYs)
  • Captioning
  • Screen reader software
  • Video remote interpreting services

A covered entity may not:

  • Require an individual to provide his or her own interpreter
  • Rely on a minor child to interpret, except in a life threatening emergency where there is no qualified intrepreter immediately available
  • Rely on interpreters that the individual prefers when there are competency, confidentiality or other concerns
  • Rely on unqualified staff interpreters
  • Use low-quality video remote interpreting services

NOTE: It is not the intent of Section 1557 for healthcare providers to disregard medical necessity and/or patient safety in complying with these regulations.


Enforcement

Federal Enforcement

The US Department of Health and Human Services (HHS), Office for Civil Rights (OCR) enforces Section 1557 as to programs that receive funding from HHS.

OCR is a neutral, fact-finding agency that receives, investigates and resolves thousands of complaints from the public alleging discrimination in health services and health coverage.

When OCR finds violations, a covered entity will be required to take corrective actions, which may include revising policies and procedures, and implementing training and monitoring programs. Covered entities may also be required to pay compensatory damages.

When a covered entity refuses to take corrective actions, OCR may undertake proceedings to suspend or terminate Federal financial assistance from HHS. OCR may also refer the matter to the US Department of Justice for possible enforcement proceedings.

Section 1557 also provides individuals the right to sue covered entities in court for discrimination if the program or activity receives Federal financial assistance from HHS.


Contact Information

 Click on the following button to view the OCR website.

OCR

On OCR’s website:

  • Read about civil rights and HIPAA laws
  • Download fact sheets
  • Access resources in English and other languages
  • File a complaint
  • Contact them

OISC Policies and Procedures

As  a covered entity, OISC is required to comply with Section 1157 of the ACA.

Nondiscrimination Statement and Taglines

  1. A Nondiscrimination link was added to the footer of the OISC website. The link includes the full Notice of Nondiscrimination and Taglines in the top 15 languages spoken in Minnesota, which provides information to patients on how to access language assistance services at OISC. Click on the following button to view the web page. Nondiscrimination
  2. The OISC full Notice of Nondiscrmination and the Taglines are also posted at the front desk.
  3. A Statement of Nondiscrimination was added to the Patient Rights and Responsibilities brochure.

Coordinator and Grievance Procedure

  1. The Administrator is designated as the Civil Rights Coordinator. The Administrator’s contact information is listed on the full Notice of Nondiscrimination.
  2. A grievance procedure will be followed for non-compliance with Section 1557.
  3. The Grievance Policy will be reviewed and updated to reflect this and sent to the next scheduled Board meeting for approval.

Language Assistance Services

  1. The Allina-wide Interpreter Services: Efficient and Effective Communication policy was approved by Allina Health in February, 2017.
  2. The OISC policy will be reviewed and updated to incorporate the Section 1557 language and sent to the next scheduled Board meeting for approval.
  3. Key points of the Allina-wide/OISC Interpreter Services policy:
  • Professional, qualified, in-person, phone or video interpreters, auxiliary aids, and translated materials (when available) will be provided to all patients and/or their companions at no cost.
  • If a patient and/or companion declines or refuses language assistance surfaces, staff should still arrange for language assistance services if needed to ensure effective communication and patient safety
  • Staff will only use qualified professional interpreter resources previously authorized by Allina Health Interpreter Services. Staff will not authorize payment for interpreters who have not been pre-approved for service activities by Allina Health Interpreter Services.
    • Patients, companions or patient-acquired interpreters will not be reimbursed. They may stay for patient comfort.
    • Staff will NOT sign any documents presented by patients, companions, or patient-acquired interpreters who are not Qualified Professional Interpreters.
    • Staff WILL NOT USE FAMILY MEMBERS AS INTERPRETERS.
    • If a provider or staff is fluent in the patient’s language, he/she does not need to have a qualified, professional interpreter present for the interaction, however, the provider/staff member may not act as an interpreter for other providers/staff members communicating with the patient.

4. Translated materials available at OISC include:

  • Minnesota Outpatient Surgical Center Patients’ Bill of Rights
  • Privacy Notice
  • Informed Consent Form

5. Large print materials availabe include:

  • Minnesota Outpatient Surgical Center Patients’ Bill of Rights (available on the MDH website)

6. Other available aids:

  • Magnifier (located in file cabinet at nurse’s station)
  • TTY phone number for preoperative communication

7. Oral or signed (ASL) translation will be provided when there is significant documentation that has not been translated, in writing, into the patient’s language

8. Document what type of services were provided to the patient in the medica record.


Conclusion

Section 1557 is an overlap with existing non-discrimination regulations, but is the first federal civil rights law to broadly prohobit discrimination on the basis of sex  in federally funded health programs.

Nondiscrimination statements and taglines have been posted and published to communicate with patients regarding nondiscrimination laws and the availability of language assistance services to meet the requirements of Section 1557.

All patient complaints and concerns related to Section 1557 should be directed to the Administrator.


Section 1557 of the Affordable Care Act

Please complete the following attestation form and submit to verify completion of the Section 1557 of the Affordable Care Act objectives.
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