Section 1557 of the Affordable Care Act

Section 1557 of the Affordable Care Act

WHAT IS SECTION 1557 OF THE ACA?

Section 1557 of the Affordable Care Act includes sweeping provisions to ensure an individual’s access to healthcare without regard to any discrimination – race, color, national origin, sex, age or disability.  While some of these protections already exist in Federal or State law, Section 1557 makes it virtually impossible to limit access to health care based on any discrimination.  Specifically, it is the first law to prohibit discrimination in health care based on sex discrimination.  The law provides that health care providers meet strict requirements related to provision of health care in light of any form of discrimination.

WHO MUST COMPLY WITH THIS LAW?

Section 1557 applies to all covered entities as defined in HIPAA.  That means all doctors must comply.  The law also specifically states that all of the “entity’s” operation must comply, meaning all employees must not discriminate based on any provisions in Section 1557.

It should be noted that this law applies to the provision of health care services – NOT anything to do with employment law.  Discrimination in employment practice has its own extensive set of laws.

WHAT SPECIFIC ACTS OF DISCRIMINATION ARE COVERED?

Section 1557 details potential discrimination in four areas:  sex discrimination; age discrimination; discrimination based on race, color or national origin; and, discrimination based on an individual’s disability status.

SEX DISCRIMINATION

As stated, Section 1557 is the first Federal law to broadly prohibit sex discrimination.  To this end, it over-rides State law unless such State law prohibits sex discrimination in a more restrictive manner than the Federal statute.

Sex discrimination is specifically defined to include, but not be limited to, discrimination based on an individual’s sex, pregnancy or related medical complications, termination of pregnancy, gender identity and sex stereotypes.  Gender identity is finally defined to mean “an individual’s internal sense of gender” – which may be male, female, neither or a combination of both.  Similar to employee protection, gender identity is whatever the individual “feels” they are – period.

Sex stereotyping refers to any activity that could be construed as adherence or departure from pre-conceived or established notions of masculinity or femininity.

 

AGE DISCRIMINATION

While this part of the law may apply more to payer programs, there are implications for doctors as well.  A doctor may not exclude, deny or limit services based solely on an individual’s age – you cannot refuse to care for patient who is 70 because you state your practice is limited to patients under the age of 50.  Exceptions could be based on the specialty nature of a practice (pediatric or geriatric, for example). Unless the practice truly has a specialty restricting it to a certain age bracket, it would be advisable to exercise caution in refusing care to any age group.  Initial care can always result in an ultimate triage to another more qualified provider.

DISCRIMINATION BASED ON RACE, COLOR OR NATIONAL ORIGIN

A provider may not delay, deny or segregate health care services based on an individual’s race, color or national origin.  Section 1557 specifically extends this protection to any individual in the United States, whether they are in the country lawfully or not.  In modern society this should never be an issue in any medical practice.

DISCRIMINATION BASED ON DISABILITY

The most potentially burdensome aspect of Section 1557 relates to a provider’s obligation to make provisions for patients with disabilities.

Disability is legally defined as “any physical or mental impairment that substantially limits one or more of the major life activities of such individual, having a record or such an impairment, or being regarded as having such an impairment.”  Just how broad this definition may be construed is easily revealed in the list of conditions listed as examples of potential disability:  contagious and non-contagious disease; orthopedic, visual, speech and hearing impairments; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; mental retardation; emotional illness; learning disabilities; HIV; tuberculosis; drug addiction; and, alcoholism.

Section 1557 mandates that providers must take certain steps to accommodate patients with disabilities as defined.  These steps include:

  • Make reasonable changes to policies, procedures or practice where necessary to provide equal access for individuals with disability. Examples cited include allowing a service animal in your office, providing a patient with an anxiety disorder a private place to wait for their appointment or providing large print versions of office forms and educational material.
  • If you provide for online access to your office, online ordering, online appointment scheduling, online completion of questionnaires or online education, your procedures must be modified so that the person with a disability, typically visual, can still access those services or at a minimum is provided clear direction how these services can be accommodated for them.
  • Ensure new construction and altered facilities meet all disability and OSHA regulations. Existing practices, including optometric practices, are still required to adhere to the OSHA/CDC operational mandates under the Globally Harmonized System.
  • Provide effective means of communication to patient with language limitations (details later).

These accommodations definitely include qualified sign language interpreters and large print materials for low vision patients but could include a host or other aids or services.

The statute does state that the specific accommodation cannot result in undue financial burden or would fundamentally alter the provider’s business.  It is very unlikely that any provider’s concept of what is an “undue burden” would be the same are the government or a court of law.

LIMITED ENGLISH PROFICIENCY AS A DISABILITY

This area of Section 1557 requires more explanation.  Section 1557 basically states that a provider is obligated to make sure communications with patients is in a manner that the patient can understand and is comfortable with.  This requirement has been intact in several states at some level for many years but Section 1557 establishes a national mandate for “language assistance”.

The question becomes what is “language assistance” and the answer is the assistance is extensive.  Specifically, the law states the following:

For patients with LEP (limited English proficiency), if requested by the patient, the provider must provide free of charge a qualified interpreter or accurate written translation.  Other forms of language assistance would rarely be considered adequate as the provider may NOT:

  • Require the patient provide their own interpreter
  • Rely on a minor child to interpret (except in emergency care)
  • Rely on interpreters chosen by the provider if there are concerns from the patient of competency or confidentiality
  • Rely on unqualified (marginally proficient) bi- or multilingual staff
  • Use low quality video remote interpretive services

The law requires that doctors provide language assistance services for the top fifteen languages spoken per state.  HHS provides a list of those fifteen languages at:

http://www.hhs.gov/sites/default/files/resources-for-covered-entities-top-15-languages-list.pdf

WHAT SPECIFIC ACTION MUST A PROVIDER TAKE NOW

In addition to meeting all the requirements discussed already, much like HIPAA, the burden of patient education on anti-discrimination is placed upon the provider.  To provide adequate patient education of their rights, providers must post notifications for their patients.  These notifications must be posted in a prominent location in the office and on the provider’s website, if one exists.  If posted on a website, it must be on or accessible from the website home page.

  • Notice of Non-Discrimination

 

This is a brief statement of your intent to not discrimination against any individual’s access to health care you provide.

 

  • Availability of Language Assistance

 

This is also called a “tagline” – it is an additional component of the non-discrimination notice that informs patients what language assistance is provided in the provider’s individual state.

Per HHS guidelines, samples of these documents for English speaking patients is attached.  These documents must also be available in the individual’s native language.

HHS has provided that translation for each language and can found at:

http://www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/index.html

It is suggested these websites be placed on the front office desktop(s) for easy access.  If a practice encounters a patient with LEP, download the appropriate language specific document, make the necessary customizations for the practice and provide the documents to the patient.  You can always customize all fifteen required languages ahead of time and have them readily available if needed.

In the final analysis, it is the patient that determines what level of assistance they are comfortable with.  The following examples should provide guidance.

Ex 1.  A LEP patient presents for care stating they cannot understand English and needs a qualified interpreter.  This situation is clear – the doctor is obligated to provide a qualified interpreter.

Ex. 2  A LEP patient presents for care with their 10 year old son who speaks English.  Under Section 1557, the doctor should not rely on the understanding of the minor for translation.  Even if the patient states it is acceptable for the minor to translate, allowing this would not be advisable.

Ex. 3  A LEP patient presents for care.  You have limited conversational skills in their language but it is clear the patient accepts this and does not demand you provider an interpreter.  You would be free to continue care without an interpreter.

Most interpreter services are now performed remotely by telephone or video conferencing.  In person interpretation is also available although typically more costly.  Telephone is the most common mode of communication.  An internet search of agencies in your area or state should provide several options.  The estimated costs of interpreter services range from $1.25 – $3.00 per minute ($75.00-$180.00 an hour), most with a 15 minute minimum.  With this in mind, planning when and how much of the interpreter’s service is needed is an important decision.  As Spanish is the most common non-English language in all states, bilingual staff members becoming more valuable.

Doctors should not take this new law lightly.  Penalties for non-compliance are high and the patient community is being made acutely aware of the doctor’s obligations.

EMPLOYEE TRAINING

Employee training is not mandated under Section 1557 but the law makes it clear that the practice ensure all it’s “agents” understand non-discrimination.  A discussion about this law in addition to other compliance training is strongly recommended and included in the PCS HIPAA staff training module.

AND ONE FINAL REQUIREMENT FOR SOME

If the practice employs 15 or more employees (combination of full time or part time), the practice is also required to create a written Grievance Procedure with a Grievance Coordinator overseeing the practice’s non-discrimination efforts.  An example of a Grievance Procedure Manual is also attached.

A Grievance Compliance Manual is a recommended idea for practices of any size.  At a minimum, it is recommended the practice name a Grievance Officer as the Non-Discrimination Statement suggests any grievance be addressed to the Grievance Officer in the practice.  All the supporting documents can be included as part of your HIPAA Privacy Program.

 

AND IF I DON’T WANT TO COMPLY WITH THIS LAW?

Like HIPAA, the Office of Civil Rights is charged with enforcing this law.  Under Section 1557, OCR has the authoring to investigate compliance with the law as it determines appropriate.  If violations are found or reported, OCR may take the following actions:

  • Require the practice make or revise policies and implement training to ensure future compliance
  • Issue compensatory fines
  • Suspend or terminate participation in programs with Federal assistance (Medicare, Medicaid, Health Insurance Marketplace)
  • Impose criminal proceedings
  • In addition, Section 1557 provides individuals the right to sue providers in court for discrimination under any of the terms in this law.

 

If you have any specific questions regarding this new law, contact:

info@practicecompliancesolutions.com