Monday, October 17, 2016

What Physician Practices and Other Healthcare Providers Need to Know About the Posting and Grievance Obligations Set Forth in the Section 1557 Final Rule

By Rose Willis

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability. Recently, the Federal Office for Civil Rights (“OCR”) issued a Final Rule clarifying existing nondiscrimination requirements and setting forth new standards implementing Section 1557 (the “Final Rule”). Among other things, the Final Rule requires that certain entities post various notices, taglines and other statements relating to non-discrimination, and adopt a grievance procedure. While the Final Rule was effective July 18, 2016, some of the provisions are effective 90 days from the effective date (mid-October). This means that if you are covered by the Final Rule and have not already posted these notices or adopted a grievance procedure, you may need to immediately take action to comply with these requirements and avoid the remedial action that could be taken by the OCR should it discover non-compliance.

The Final Rule applies to all entities receiving “federal financial assistance,” which is defined to specifically exclude Medicare Part B. However, since it is defined to include assistance such as receipt of Medicaid reimbursement and Meaningful Use Payments, the exclusion for Part B does not really exclude many healthcare providers from its obligations. The requirements for such covered entities are summarized below:

  • Notice Statement. The entity must post a Notice informing patients of Non-Discrimination and Accessibility Requirements. We recommend that entities post the Notice in the form that has been approved by OCR, located here: http://www.hhs.gov/sites/default/files/sample-ce-notice-english.pdf. The Notice must be posted in a visible font size in the following 3 areas:
    • (i) In significant publications and significant communications targeted to beneficiaries, enrollees, applicants, and members of the public, except for significant publications and significant communications that are small-sized, such as postcards and tri-folds brochures;
    • (ii) In conspicuous physical locations where the entity interacts with the public; and
    • (iii) In a conspicuous location on the covered entity’s Web site accessible from the home page of the covered entity’s Web site.
  • Taglines. The entity must also post “Taglines” in the same 3 areas stated above, informing individuals with limited English proficiency of language assistance services. The Taglines must be posted in the top 15 languages spoken by individuals with limited English proficiency in the State. In Michigan, those languages are Spanish, Arabic, Chinese, Syriac, Vietnamese, Albanian, Korean, Bengali, Polish, German, Italian, Japanese, Russian, Serbo-Croatian, and Tagalog.
    • While the taglines will not need to be posted in English, it effectively states: Proficiency of Language Assistance Services ATTENTION: If you speak [insert language], language assistance services, free of charge, are available to you. Call 1-xxx-xxx-xxxx.
    • The translated versions of the taglines in each of these languages have been provided by the Government for your use, and are available here: http://www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/index.html
  • Postings in Small Sized Publications/Communications. In addition, the entity must post the following in significant publications and significant communications that are small-sized, such as postcards and tri-folds brochures.
    • The taglines described above in the top 2 languages spoken by individuals with limited English proficiency in the State. In Michigan, those languages are Spanish and Arabic; and
    • A brief Statement of Non-Discrimination as follows: [Name of Entity] complies with applicable Federal civil rights laws and does not discriminate on the basis of race, color, national origin, age, disability, or sex.
  • Grievance Procedure/Coordinator. In addition, if the entity employs 15 or more employees, it must adopt a grievance procedure and designate a responsible employee to act as the grievance coordinator (this could be the same person as the person who acts as current compliance coordinator). A sample grievance procedure has been developed by OCR for your use, and it can be found here: http:///www.hhs.gov/sites/default/files/section-1557-sample-grievance-procedure.pdf
While we recommend using the forms developed by OCR, each entity will need to tailor those forms to at least incorporate its specific contact information.

Dickinson Wright assists healthcare providers with determining how the Section 1557 Final Rule applies to them and as applicable preparing the notices, statements, taglines and grievance procedures referenced herein.