Section 1557 of the Affordable Care Act protects individuals from discrimination on the basis of race, color, national origin, age, disability, and sex in federally funded health-related services and coverage. On May 18, 2016, the U.S. Department of Health and Human Services (HHS) published a final rule under Section 1557. The final rule, which applies to dentists and dental practices that receive certain kinds of funds from HHS, is enforced by the Office for Civil Rights (OCR), the federal agency that enforces HIPAA. More information on the final rule is available on the OCR website at www.hhs.gov/civil-rights/for-individuals/section-1557/index.html. A link to the final rule itself is available at www.federalregister.gov/documents/2016/05/18/2016-11458/nondiscrimination-in-health-programs-and-activities.
Dental practices may already be subject to many of the Section 1557 requirements and prohibitions through other applicable federal, state or local laws, such as the Americans with Disabilities Act and Title VI of the Civil Rights Act of 1964. Certain requirements may be new, however, such as the requirement to post taglines and notices, to use “qualified” interpreters and translations (including “qualified” bilingual staff), and the right of an individual or entity to bring a civil action in federal court alleging discrimination. According to OCR, Section 1557 is also the first federal civil rights law to prohibit discrimination on the basis of sex in health care.
The Section 1557 final rule does not generally apply to employment discrimination. Employment discrimination is covered by other federal, state and local laws. However, if a covered dental practice has an employee health program, then the program may be required to comply with the Section 1557 final rule.
Regarding religious exemptions, OCR has stated that the Section 1557 final rule does not include a religious exemption for religious organizations in circumstances in which nondiscrimination obligations conflict with religious beliefs, but the final rule does not displace existing protections for religious freedom and conscience.
The Section 1557 final rule prohibits using marketing practices that discriminate on the basis of disability and other prohibited bases.
The ADA Practical Guide to Section 1557 of the Affordable Care Act1
Chapter 1: The Basics of Section 1557
Covered Dentists and Dental Practices
A dentist or dental practice becomes covered by the Section 1557 final rule by receiving certain kinds of government funds from HHS, such as reimbursement under Medicaid or CHIP, or “meaningful use” payments under the Medicare and Medicaid Electronic Health Records Incentive Program. In addition, the government has taken the position that the final rule applies to recipients of reimbursement under Medicare Advantage (Medicare Part C), whether the plan reimburses the dentist or the patient. In order to know if a patient’s insurance is through Medicare Advantage, staff will need to call the 800 number of the plan or check the website on the patient’s identification card to verify the type of plan.
By itself, accepting reimbursement under Medicare Part B, including Durable Medical Equipment (DME) that is reimbursed under Part B, does not make a dentist or dental practice covered by the final rule.
Working at an entity that is covered by the Section 1557 final rule, such as a hospital, does not automatically mean that you are a covered entity. It depends on the nature of your relationship to the entity. If discrimination is alleged at a covered entity where you work as an employee or a contractor, the entity is generally responsible for compliance with the Section 1557 final rule and is subject to enforcement action. However, if you are otherwise covered by the Section 1557 final rule and you are an attending at a hospital, then you would be responsible for compliance and subject to enforcement.
What could happen if a covered dentist or dental practice is found to be non-compliant with the Section 1557 final rule? OCR has indicated that when it finds a violation, the covered entity will be required to take corrective actions, which may include revising policies and procedures and implementing training and monitoring programs. Covered entities may also be required to pay compensatory damages. When a covered entity refuses to take corrective actions, OCR may undertake proceedings to suspend or terminate federal financial assistance from HHS. OCR may also refer the matter to the Justice Department for possible enforcement proceedings. The Section 1557 final rule provides individuals the right to sue covered entities in federal court for discrimination.
Effective Dates
OCR has been enforcing Section 1557 since 2010, but the final rule was published on May 18, 2016. There are three key compliance dates for the requirements in the final rule.
By July 18, 2016, covered dental practices needed to comply with most of the final rule, such as:
• Individuals with limited English proficiency (LEP). Take reasonable steps to provide meaningful access to each individual with LEP eligible to be served or likely to be encountered in your office by providing language assistance services free of charge.
• Individuals with disabilities. Take appropriate steps to ensure effective communications with individuals with disabilities, and to provide appropriate communication tools to individuals with disabilities when necessary.
• Qualified interpreters and translators. When you provide an interpreter or translator for an individual with LEP or an interpreter for an individual with a disability, the interpreter or translator must meet certain criteria (this also applies to bilingual staff). A video remote service could be used; if you use such a service, there are specific technical requirements that must be met.
• Accessibility of technology. Electronic or information technology used by patients must be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens or a fundamental alteration of the nature of the practice.
• Grievance procedures. If you have 15 or more employees, you must develop and implement a grievance procedure and include information about your grievance procedure in your Notice of Nondiscrimination.
By October 16, 2016:
• A Notice of Nondiscrimination must be posted in your office, on your website (if you have one), and in significant publications and communications.
• Taglines in the top 15 non-English languages spoken in your state must be posted in your office, on your website (if you have one), and in significant publications and communications. A tagline is a short statement indicating the availability of language assistance services free of charge.
• Shorter publications. In shorter significant publications and communications such as postcards and tri-fold brochures, you may use a shorter Statement of Nondiscrimination instead of the full Notice of Nondiscrimination, and taglines in the top two languages instead of all 15.
By Jan. 1, 2017, or, if later, by the first day of the plan year or policy year:
• Employee health programs. Certain employee health programs offered by covered entities, such as employee health benefit plans, wellness programs, and long term care plans, must comply with the final rule. With certain exceptions, technology used by employees in connection with the health program must be accessible to individuals with disabilities.
