Health Law Alert: So You Think Your Non-Discrimination Policies and Practices Are Up to Date? Think Again.

OCR Reaches Agreements with Public Health Agency and Health Care Provider Regarding Alleged Violations of Section 1557 of the Affordable Care Act and Other Non-Discrimination Laws.

Voluntary resolution agreements recently were entered into with the federal Office for Civil Rights for alleged violations of anti-discrimination laws, including the new requirements under Section 1557 of the Affordable Care Act that went into effect in the second half of last year. These enforcement actions may indicate a trend by the federal government to scrutinize health care providers’ policies and practices relating to non-discrimination in the provision of, and communications about, health care.

The Allegations

The U.S. Department of Health & Human Services, Office for Civil Rights (OCR) entered into a Voluntary Resolution Agreement with the Erie County Department of Social Services (ECDSS) of Buffalo, New York to resolve claims that ECDSS did not provide proper language assistance services to individuals with limited English proficiency (LEP). The agreement follows a complaint filed by Neighborhood Legal Services on behalf of five individuals who alleged that ECDSS failed to provide language assistance and important documentation in their native languages required under the law.

OCR investigated the complaint under Title VI of the Civil Rights Act of 1964 (Title VI), which prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving federal financial assistance. Though investigated under Title VI, the provisions of the voluntary settlement reflect the standards contained in the final rule implementing Section 1557 of the Affordable Care Act (Section 1557).

In a separate action, the OCR, in partnership with the U.S. Attorney’s Office for the District of Connecticut (Conn. DOJ), entered into a Voluntary Resolution Agreement with John Dempsey Hospital, a subsidiary of the University of Connecticut Health Center (UConn Health), to resolve claims that UConn Health did not provide proper auxiliary aids to a deaf individual seeking medical services. The agreement follows a complaint that, despite requesting services, the deaf patient was not provided with an interpreter or video remote interpreting services and was forced to rely on a companion to interpret during a hospital visit, in violation of federal law.

Together with the Conn. DOJ, the OCR conducted a compliance review of UConn Health’s policies and procedures for effective communication with individuals who are deaf or hard of hearing to determine compliance with Title II of the Americans with Disabilities Act of 1990 (Title II), Section 504 of the Rehabilitation Act of 1973 (Section 504) and Affordable Care Act Section 1557. These federal laws prohibit entities receiving federal financial assistance from discriminating against qualified individuals with disabilities.

What is Section 1557 of the Affordable Care Act?

Section 1557 is the nondiscrimination law set forth in the Affordable Care Act. It prohibits discrimination on the basis of race, color, national origin, sex, age or disability. Entities subject to the Section 1557 include any health program or activity that receives funding from the HHS, any health program that HHS itself administers, and Health Insurance Marketplaces and issuers that participate in those marketplaces.

Under the law, covered entities are prohibited from discriminating against protected individuals and are required to take affirmative steps to ensure equal and meaningful access to health care and insurance coverage. This includes, among other requirements, written Section 1557 policies and procedures, publication of certain notices in multiple languages and the provision of translation, interpretation and other disability services to ensure effective and meaningful access to and communications about health care. A covered entity’s policies and procedures in place prior to the effective date of the law (July 2016) are likely not sufficient for compliance with Section 1557.

Remedial Actions Mandated by the Resolution Agreements

ECDSS

As a result of OCR’s investigation into ECDSS’s alleged violation of Section 1557, ECDSS agreed to take multiple actions to improve access to its language assistance services. These actions include:

• Assign a Title VI coordinator
• Conduct and complete an assessment of the linguistic needs of the affected population served by ECDSS
• Identify and translate all vital documents provided by ECDSS
• Develop and implement a language access plan with written policies and procedures on providing assistance to individuals with LEP
• Develop and implement mandatory training for all staff
• Adopt a grievance procedure
• Post a Notice of Nondiscrimination
• Post a Nondiscrimination Statement
• Post Taglines in at least 10 languages.

ECDSS also is required to allow OCR to review, at any time, ECDSS’s continued compliance with the Agreement. As part of the review, ECDSS may be required to provide written reports, permit inspection of offices, interview staff members, and allow OCR to examine and copy documents. ECDSS is also required to retain all records required by OCR to assess its compliance with the Agreement and to submit reports to OCR every six months.

UConn Health

As a result of OCR’s compliance review of UConn Health’s alleged violations of Section 1557, UConn Health agreed to take the following steps to ensure compliance with federal laws:

• Assign a Civil Rights Coordinator
• Revise its policies and procedures
• Incorporate a general assessment evaluation into the patient intake process
• Track all requests for auxiliary aids and services
• Monitor performance of interpreter services to ensure effective communication
• Adopt a grievance procedure
• Post a Notice of Nondiscrimination
• Post a Nondiscrimination Statement
• Conduct mandatory training for all staff.

UConn Health further agreed to pay $20,000 to the complainant in compensatory relief and is required to provide Compliance Reports to the Office of the United States Attorney every six months for the duration of the agreement. The Compliance Reports will be based upon independent quarterly audits conducted, which will be submitted concurrently.

Action May Be Required

Section 1557 requires covered entities to take affirmative steps to ensure compliance with the law. These steps may include displaying signage at certain facilities, providing translated written communications, providing translation and other assistance services, providing auxiliary aids, providing additional training for staff, and amending policies and procedures.

Should you need more information or assistance in understanding the requirements of Section 1557, reviewing your current policies and procedures, or deciding whether further action is necessary, please contact Lani M. Dornfeld, Esq. or one of the members of the health law team below.