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ASCs Must Meet Updated Nondiscrimination Requirements

Surgery centers need to assign Section 1557 coordinators by November

BY ALEX TAIRA | AUGUST 9, 2024

The recently released Section 1557 final rule (FR) from the US Department of Health and Human Services (HHS) Office for Civil Rights (OCR) creates three major deadlines for ASCs: July 5, 2024 (the rule’s effective date), November 2, 2024, and July 5, 2025.

Section 1557 is the civil rights provision of the Affordable Care Act of 2010 (ACA) and prohibits “discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities.” On April 26, 2024, OCR issued the FR, which established revised policies under Section 1557.

The Change in Requirements

By July 5, 2024, all covered entities were required to have taken reasonable steps to provide meaningful access to individuals with limited English proficiency (LEP). This includes offering free language assistance services and/or translation services, when applicable. Facilities also should take steps to ensure that communication with individuals with disabilities is as effective as communications with nondisabled individuals. This also includes ensuring adequate access to the entity’s physical space consistent with regulations from the Americans with Disabilities Act (ADA).

By November 2, 2024, surgery centers and all entities with 15 or more employees must designate a staff person as the “Section 1557 Coordinator.” This requirement was finalized as part of a 2016 rule but subsequently repealed in 2020. The coordinator must ensure the entity’s compliance with Section 1557 requirements, including language access, effective communication for individuals with disabilities, employee nondiscrimination training, and the institution of a grievance process. Also by November 2, 2024, all covered entities must provide a Notice of Nondiscrimination that states compliance with federal nondiscrimination protections and provides instructions for filing grievances. The Notice of Nondiscrimination must be provided annually and at patient request, as well as posted on a website (when applicable) and in a clear and prominent physical location in the facility.

By July 5, 2025, all covered entities are required to implement written policies and procedures that fulfill the nondiscrimination requirements of the final rule. This includes a written policy that the entity does not “discriminate on the basis of race, color, national origin, sex, age, or disability,” as well as policies that the entity can provide language assistance services and “reasonable modifications for individuals with disabilities.” Facilities also must implement training for relevant employees on Section 1557 requirements by July 5, 2025, or no later than 30 days following implementation of the written policies and procedures.

Also by July 5, 2025, facilities must post a Notice of Availability stating that the entity will provide language assistance services free of charge when necessary. The Notice of Availability must be provided in English as well as the 15 languages most common in the state where the entity is located. The notice must be provided in all of the same manners as the Notice of Nondiscrimination—annually, by request, online and in a physical location—but also must be included as part of numerous other patient communications, such as application and intake forms, consent forms, and communications related to cost or payment. HHS has provided sample forms that facilities can use as a template for both their Notice of Nondiscrimination and Notice of Availability.

Enforcement

OCR is the primary agency with enforcement responsibility for Section 1557 nondiscrimination violations. The agency can initiate an investigation based on a specific complaint or conduct its own independent compliance review. If a violation is identified, OCR can take several corrective actions ranging from voluntary compliance letters or corrective action plans to, in serious cases, revoking federal funding (including Medicare Part B payments).

Background

The new FR originated with a previous rule issued in May 2016, which consolidated prior antidiscrimination protections into a single regulatory infrastructure, extended new protections against discrimination based on sex, established definitions for terms and covered entities, and much more. The requirements in the 2016 rule were significantly scaled back by a new final rule issued in June 2020 by the Trump administration. The 2020 rule reduced or removed protections related to gender identity and sexual orientation, allowed for broader application of religious objection exemptions, reduced language access requirements for patients with limited English proficiency (LEP), and reduced the scope of 1557 protections such that many health insurers were no longer subject to requirements. In August 2022, the Biden administration released a notice of proposed rulemaking (NPRM) with regards to nondiscrimination in health programs and activities. The NPRM generally proposed to reinstate many of the definitions and protections found in the 2016 rule.

HHS has posted numerous resources to aid compliance with 1557 requirements. This includes a frequently asked questions (FAQ) page that includes effective dates for various requirements and translation of required notices into numerous common languages.

Write Alex Taira with any questions.