On September 14, 2016, Health and Human Services (“HHS”) sent an email reminder that, beginning October 1, 2016, under Section 1557 of the Affordable Care Act (“ACA”), covered entities must post Notices of Nondiscrimination and Taglines notifying patients with limited English proficiency (“LEP”) of language assistance services.

What is Section 1557?

Section 1557 of the ACA prohibits “covered entities” from discriminating based on race, color, national origin, sex, age, or disability. Section 1557 clarifies the already existing rule that per Title VI of the Civil Rights Act of 1964, physicians are required to provide interpreter services for all LEP patients. In 1974, the case of Lau v. Nicols expanded civil rights protections to non-English speaking patients. In addition, the 1990 Americans with Disabilities Act requires healthcare professionals to effectively communicate with patients with hearing disabilities, though it stopped short of mandating interpreters in every instance.

What Is A “Covered Entity”?

Any health program, including hospitals, medical clinics, solo practitioners, nursing homes, and clinics, that receive Federal financial assistance from Medicaid or Medicare, except for Part B, are covered entities and subject to the rule.

What Does Section 1557 Require?

Covered entities must provide “meaningful access” to care for LEP patients. At minimum, covered entities must provide the following:

• Notices of Nondiscrimination to be posted on websites, in offices, and in any significant publication or communication.
• Translated Taglines, or short statements notifying patients of language support in the top 15 non-English languages spoken in the State.
• Qualified Interpreters if an individual with LEP requires oral interpretation to have “meaningful access” to treatment. (45 C.F.R. § 92.201(d)). Interpretation and translation services must be provided in a timely manner and at no cost to the patient.

In addition, covered entities with 15 or more employees must have a grievance procedure and a compliance coordinator.

As resources, HHS has posted on its website sample Notice of Nondiscrimination, Statement of Nondiscrimination, and Tagline documents, and a table listing the top 15 languages in each State.

What Happens If A Provider Does Not Comply?

Section 1557 is enforced by the U.S. Department of Health and Human Services, Office for Civil Rights (“OCR”). Violators will be required to take corrective actions such as revising policies and procedures and implementing training programs. If a covered entity remains noncompliant, OCR can suspend or terminate the covered entity from participating in Federal programs. Such a suspension would normally trigger the mandatory self-reporting clause contained in most provider contracts with private payors, such as BlueShield/Blue Cross, United Healthcare, etc. If the private payors terminated their agreements with a provider based on the provider’s termination from Federal programs, it would end the provider’s ability to practice.

For more information, contact Marlena Grundy at 425.553.2070 or marlena@pnwsls.com.