What you need to know about the ACA's nondiscrimination provision

A Law Review Q&A

In June, CMS announced the final rules related to Section 1557 of the Affordable Care Act (ACA), implementing the nondiscrimination provision of the ACA. We spoke with Barnes & Thornburg's Anne Compton-Brown to find out just what this provision means and what changes it may bring for providers.

Question: Nondiscrimination language was included in the ACA when it was passed more than six years ago: what is this Final Rule?

Compton-Brown: Fundamentally, Section 1557 is nothing new. Rather, it's more like CMS making good on its promise to clarify the nondiscrimination language included in the Affordable Care Act. The ACA provision gained notoriety as the first to explicitly prohibit sex-based discrimination in all federally-funded health programs, but it also includes guidelines about how to adequately provide care for individuals with limited English proficiency (LEP) and those with mental and physical disabilities. Section 1557 also specifies compliance requirements for health plans and third party administrators.

It's worth noting that this provision is specific to health care, but is not the only relevant nondiscrimination legislation protecting patients. Others include:

  • State nondiscrimination laws;
  • Title VI of the Civil Rights Act, which prohibits programs receiving federal funding from discriminating on the bases of sex, race, color, country of origin, or religion;
  • Title IX of the Civil Rights Act, which prohibits sex-based discrimination in education;
  • Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which prohibit discrimination based on disability and include physical and mental accessibility requirements; and
  • Age Discrimination Act and Age Discrimination in Employment Act, which prohibit discrimination on the basis of age.

Q: What will be the biggest change in providers' day-to-day operations as a result of this rule?

Compton-Brown: The rule will lead to substantially more administrator-provider interactions. Section 1557 mandates that any health program or activity that receives financial assistance from the Department of Health and Human Services (HHS)—such as hospitals that participate in Medicare (excluding Medicare Part B) and physicians and other providers who accept Medicaid—that has 15 or more employees has to have a compliance coordinator on staff to ensure that clinicians adhere to the new nondiscrimination guidelines. Presumably, the clinicians will be interacting with this individual on a near-daily basis. That's a big change to make.

From an administrative perspective, the LEP requirements seem to be the most onerous change. Section 1557 spells out that every place of care must offer "meaningful access" to health care services for individuals with LEP. However, providers have a lot of questions around how to define "meaningful access." The law is clear in stating that any site of care must display taglines announcing language assistance services in the top 15 non-English languages spoken in their state, but it doesn't specify whether interpretation services need to follow the same rule.

If that is the case for interpretation services, it could lead to providers investing in software for languages that they may never come across in their local patient mix. This could be especially difficult for small, independent physician groups. It's important to remember that Section 1557 is an unfunded mandate. So, if a physician owns his own independent practice, making $90,000 per year, and has to spend $1,000 per year on language services he will never use, that's a burden that could impact care delivery. Every site of care needs to sort through these issues.

Q: The provision went into effect as of July 1, 2016, for all providers, but payers have until January 1, 2017. Why is that?

Compton-Brown: It would be easy to see that deadline and think that plans need the extra time because they're currently discriminatory, but by and large that's not the case. First of all, most plans begin coverage on January 1, so it's a natural deadline for any change in plan designs. Furthermore, it's less about fixing discriminatory benefits plans and more about making sure that specific language is in place to demonstrate compliance with Section 1557. Because the concept of nondiscrimination was written into the ACA, plans should theoretically be compliant already. Now there are specific standards that they need to meet to avoid penalty, so they will need to go through each contract with a fine-tooth comb. That takes time. There might be a few tweaks in plans here and there, but for the most part the plans themselves won't change.

Q: Did any demographic groups in particular benefit the most from this update?

Compton-Brown: The groups with the clearest wins coming from the Final Rule are transgendered individuals, those with limited English proficiency, and those with mental disabilities, since the language explicitly protects their meaningful access to care. For transgendered patients, providers are required to offer services in accordance with the patient's gender identity rather than their sex at birth. Some health care providers have sued the Obama administration over this requirement, but at the moment, the protection stands. For individuals with limited English proficiency and mental or physical disabilities, providers must use accessible communication practices.

Overall, the provision tries to be very inclusive—but for better or for worse, it leaves plenty of space for complaints to be handled on a case-by-case basis.

Take the LEP provision, for example: How do you determine whether or not a provider offered "meaningful access" to a patient, regardless of their primary language? You have to decide on a case-by-case basis. Similar challenges emerge with complaints concerning the issues of sexual orientation and religion, since neither is explicitly mentioned in 1557. Previous health care legislation around religious exemption and provider conscience stands, such as the Religious Freedom Restoration Act (RFRA), the provisions of the ACA related to abortion services, and associated regulations related to preventive health services such as contraceptives under the ACA, but the final rule offers no additional exemptions or protections.

Time will tell whether this case-by-case approach provides adequate protection for these patient groups, and how much of a burden it is for providers.

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