Written by Corliss Collins, BSHIM, RHIT, CRCR, CSM, CCA, CBCS, CPDC and Joanne Byron, BS, LPN, CCA, CHA, CHCO, CHBS, CHCM, CIFHA, CMDP, OHCC, ICDCT-CM/PCS
The 2024 Final Rule for Section 1557 of the Affordable Care Act (ACA) was issued by the Department of Health and Human Services (HHS) on April 26, 2024. The effective date was July 5, 2024. The American Institute of Healthcare Compliance (AIHC) Volunteer Education Committee has written this article in response to several requests for more information on the Final Rule, which aims to ensure that all people have non-discriminatory access to healthcare. It applies to health programs and activities that receive federal financial assistance, known as covered entities.
Introduction
The Final Rule applies to all health insurance issuers that are recipients of federal financial assistance, which includes Medicare Parts C and D payments, as well as state Medicaid agencies and the health insurance federal and state Marketplaces (and all plans offered by issuers that participate in those Marketplaces that receive federal financial assistance).
Those covered by the rule may include hospitals, health clinics, health insurance issuers, state Medicaid agencies, community health centers, physicians’ practices, and home health care agencies.
Section 1557 makes it unlawful for health care providers, including doctors' practices and hospitals that receive federal financial assistance, to refuse to treat—or to otherwise discriminate against—an individual based on a number of characteristics, including:
- Race
- Color
- National origin
- Age
- Disability
- Sex, which includes sexual orientation and gender identity
Effective date is July 5, 2024.
Most of the implementing regulations in the new rule are effective 60 days (July 5, 2024) after publication in the Federal Register, which was on May 6, 2024. Some provisions impacting health insurance plan design won’t become effective until the plan year beginning after January 1, 2025, and other provisions where entities might need additional time to amend current practices also have later effective dates.
- The Final Rule does not apply to employment practices, including the provision of employee health benefits.
Overview of the 2024 Final Rule for Section 1557 legislation
1. Strengthening Anti-Discrimination Protections
- Expanded Protections: Include protections against discrimination based on gender identity and sexual orientation.
- Clarification of Existing Protections: Clearly define what constitutes discrimination in health care settings.
2. Improving Access to Health Care Services
- Equitable Access: Ensure that all individuals can access health care services without discrimination.
- Language Access Requirements: Mandate language assistance services for individuals with limited English proficiency.
3. Enhancing Patient Rights
- Empowerment of Patients: Provide clear mechanisms for individuals to report discrimination and seek remedies.
- Informed Consent: Ensure patients are fully informed of their rights and available services.
4. Data Collection and Transparency
- Demographic Data Collection: Encourage the collection of data to monitor health disparities and promote health equity.
- Reporting Requirements: Establish guidelines for reporting discrimination and health outcomes.
5. Promoting Inclusive Health Care Environments
- Cultural Competency Training: Require training for health care providers to better serve diverse populations.
- Creating Safe Spaces: Implement policies to foster welcoming environments for all individuals, especially marginalized groups.
6. Clarifying Responsibilities for Covered Entities
- Defining Obligations: Clearly outline the responsibilities of health care providers and insurers under the law.
- Guidance for Compliance: Provide resources and guidance to help entities comply with the updated regulations.
7. Addressing Current Health Care Challenges
- Response to Emerging Issues: Adapt the regulations to address current challenges, including those highlighted by the COVID-19 pandemic.
- Focus on Health Equity: Tackle systemic inequalities in health care access and outcomes.
- Artificial Intelligence (AI) and Nondiscrimination
The government recognizes the potential impact of artificial intelligence (AI) in health programs and activities. Therefore, the rule clarifies that nondiscrimination in health programs and activities continues to apply to the use of AI, clinical algorithms, predictive analytics, and other tools. This clarification serves to support the October 30, 2023, Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. Specifically, the rule:
Applies the nondiscrimination principles under Section 1557 to the use of patient care decision support tools in clinical care.
Requires those covered by the rule to take steps to identify and mitigate discrimination when they use AI and other forms of decision support tools for care.
How Covered Entities Must Comply
According to guidance issued by OCR, covered entities should:
- Provide services and programs in the most integrated setting appropriate to the needs of the qualified individual with a disability
- Ensure that programs, services, activities, and facilities are accessible
- Make reasonable modifications in their policies, practices, and procedures to avoid discrimination on the basis of disability, unless it would result in a fundamental alteration of the program
- Provide auxiliary aids to persons with disabilities, at no additional cost, where necessary to afford an equal opportunity to participate in or benefit from a program or activity
- Designate a responsible employee to coordinate their efforts to comply with Section 504 and the ADA
- Adopt grievance procedures to handle complaints of disability discrimination in their programs and activities
- Provide notice that indicates:
- That the covered entity does not discriminate on the basis of disability
- How to contact the employee who coordinates the covered entity's efforts to comply with the law
- Information about the grievance procedures
Consequences for Violating a Patient’s Rights under Section 1557
The Office for Civil Rights (OCR) enforces Section 1557 of the Affordable Care Act (Section 1557), which prohibits discrimination on the basis of race, color, national origin, age, disability, or sex (including pregnancy, sexual orientation, gender identity, and sex characteristics), in covered health programs or activities. 42 U.S.C. 18116.
Section 1557 has been in effect since the enactment of the ACA in 2010. Since that time, the OCR has been receiving and investigating discrimination complaints under Section 1557.
If an individual believes s/he has been subject to discrimination in health care or health coverage, they may file a complaint with OCR under Section 1557. OCR has a toll-free number and will guide individuals through the complaint process. OCR’s complaint forms are available in a variety of languages. Individuals can file a complaint online via OCR’s Complaint Portal.
If OCR determines that it has jurisdiction, OCR will investigate the complaint or, in some cases, refer the complaint to an agency with joint jurisdiction. When OCR identifies a violation or compliance concern, it will work with the recipient to achieve compliance with the law. Depending on the scope of the changes required, complaints can be resolved through voluntary compliance letters or agreements requiring the recipient to develop policies, monitoring, notification, and training, which also resolve the specific incidents alleged in the complaint. If voluntary compliance cannot be achieved, OCR can issue a formal findings letter and refer the case to DOJ or begin administrative proceedings to revoke federal funds.
In the News - Imaging Network Violates Section 504 and Section 1557
The U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR) recently announced a settlement with the New Jersey Imaging Network (“Network”) to resolve a civil rights complaint from an individual who uses a wheelchair, and was denied mammography because of her disability, based on Section 504 of the Rehabilitation Act (Section 504) and Section 1557 of the Affordable Care Act (Section 1557), which prohibit discrimination on the basis of disability. Together, these laws protect people with disabilities from discrimination in any program or activity receiving funding from HHS. The Network has only 45 calendar days to modify policies and procedures to comply, and in addition:
Document requests for mobility assistance or other reasonable accommodations; provide patients with a description of available accommodations; and notify patients of their rights under the law.
- Develop a process for individualized assessment of patients who may require reasonable accommodations.
- Train its staff on the new policies to ensure employees understand practices and procedures for interacting with and accommodating individuals with disabilities, techniques for safely assisting individuals with limited mobility to ensure their safe access to and use of medical equipment and examination tables, and The New Jersey Imaging Network’s various non-discrimination and non-retaliation obligations.
- Notify patients, staff and the public of rights and protections afforded them by federal law and how to file a discrimination disability-based complaint with HHS.
OCR is monitoring the settlement action for the next 2 years. Click Here for the OCR & New Jersey Imaging Network Resolution Agreement.
Conclusion
This 2024 Final Rule for Section 1557 legislation aims to bolster anti-discrimination measures in health care, ensuring equitable access to services, protecting patient rights, and promoting a culture of inclusivity within health care settings. This rule reflects a commitment to address health disparities and improve the overall quality of care for all individuals.
View the Final Rule “Nondiscrimination in Health Programs and Activities” in the Federal Register – a Rule by the Centers for Medicare & Medicaid Services posted 05/06/2024.
Access More Information from HHS:
About the Authors
Corliss Collins, BSHIM, RHIT, CRCR, CSM, CCA, CBCS, CPDC is Principal & Managing Consultant, P3 Quality LLC, Founder and serves on the AIHC Volunteer Education Committee.
Joanne Byron, BS, LPN, CCA, CHA, CHCO, CHBS, CHCM, CIFHA, CMDP, OHCC, ICDCT-CM/PCS serves as the Board Chair of AIHC and oversees the Volunteer Education Committee.
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