HHS Final Rule On Nondiscrimination

Impact of new HHS Final Rule on Nondiscrimination on Physicians 

The Office for Civil Rights (OCR) of the Department of Health and Human Services (HHS) issued a Final Rule implementing Section 1557 of the Affordable Care Act (ACA), which prohibits discrimination against a patient or insured on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. The Final Rule will become effective on July 18, 2016, and will apply to hundreds of thousands of physicians, physician practices, insurers and other health care providers and facilities.  

Failure to comply with the requirements of the Final Rule can result in loss of federal funding, and those who believe they experienced prohibited discrimination have the right to sue either individually or as part of a class action. For these reasons, it is important that every affected health care provider and entity review the Final Rule and make the necessary modifications for compliance.  A copy of the Final Rule is available here, and key portions are highlighted below.  

Who does the Final Rule apply to?  

The Final Rule will apply directly to physicians, physician practices, and other health care facilities, activities and programs that accept Medicare, Medicaid, and CHIP reimbursement, or receive meaningful use information technology payments or federal funding for clinical research. (Note: Physicians who receive onlyreimbursement under Medicare Part B are not subject to the Final Rule.) The Final Rule will also apply to other health programs and activities administered under HHS, such as the federally facilitated marketplace, state-based marketplaces, and entities receiving advance premium tax credits.  These affected providers, facilities and other entities are referred to as Covered Providers for the remainder of this summary. 

Requirements of Covered Providers 

  • Prohibited Discrimination.  A Covered Provider cannot exclude from participation, deny benefits to, or otherwise discriminate against any individual on the basis of race, color, national origin, sex, age, or disability.  
    • A Covered Provider must take reasonable steps to provide meaningful access to individuals with limited English proficiency, including providing translators for both written and oral communication.
    • A Covered Provider must ensure that communications with individuals with disabilities are as effective as communications with others by providing language assistance services and auxiliary aids.
    • A Covered Provider must not discriminate on the basis of sex, which protects individuals from discrimination based on the following: (1) the individual's sex; (2) pregnancy, childbirth and related medical conditions; (3) gender identity; and (4) sex stereotyping.  This will add unprecedented federal protection under the ACA for transgender individuals and will prohibit Covered Providers from denying or limiting health care services related to gender transition.  

  • Notice and Posting Requirements. A Covered Provider must post taglines which state that language assistance services are available in at least the top 15 non-English languages spoken in the state in which the Covered Provider is located or does business. Covered Providers are also required to post notices that specify: 
    • The Covered Provider does not discriminate on the basis of race, color, national origin, sex, age or disability in its health programs and activities; 
    • The Covered Provider makes available auxiliary aids and services, including qualified interpreters and information in alternative formats for individuals with disabilities, free of charge and in a timely manner; 
    • The Covered Provider makes available language assistance services, including translated documents and oral interpretation, free of charge and in a timely manner when necessary; 
    • How to obtain the aids and services above; 
    • Identification of and contact information for the individual handling grievances (if the Covered Provider employs 15 or more people); 
    • The availability of a grievance procedure and how to file a grievance; and 
    • How to file an OCR discrimination complaint.  

The notices and taglines must be displayed: (1) in significant publications targeted to individuals, (2) in conspicuous physical locations where the entity interacts with the public, and (3) in a conspicuous location on the entity's website. Taglines and translated sample notices in 64 languages are available here

  • Compliance and Grievance Procedures.  Covered Providers are required to file an Assurance of Compliance with OCR as a condition of any application for federal financial assistance.  Additionally, Covered Providers with more than 15 employees must designate an employee responsible for compliance and adopt a grievance procedure. Covered Providers may amend their existing grievance procedures to specifically address the additional nondiscrimination requirements required under the Final Rule.