Section 1557 of the Affordable Care Act final rule was published on May 18, 2016.  The act prohibits discrimination in health care activities based on race, color, national origin, age, disability, and sex.

At a glance most people will consider that this is nothing new and therefore nothing to be concerned, however this oversimplification is dangerous as the act is somewhat specific in terms of actions to be taken by Covered Entities.

At the same time, the definition of a Covered Entity under this section is not the same as the definition under HIPAA, therefore the requirement of this act may not apply to all healthcare Providers or organizations.

Specifically speaking and base on section 92.2 Covered Entities refer to “every health program or activity, any part of which receives Federal financial assistance or made available by” HHS is subject to the Final Rule. All tax credits and subsidies made available by HHS to individuals purchasing insurance through the exchanges are included in the definition of “Federal financial assistance” in Section 92.3 of the Final Rule.  Additionally, for entities principally engaged in providing health services or health insurance, all of those entities’ activities are defined within “health program or activity.”

Example of Covered Entities include:

• Health care providers, such as physicians’ practices, hospitals, community health centers, nursing facilities, home health agencies, clinical laboratories, residential or community-based treatment facilities, intermediate care facilities for people with intellectual/developmental disabilities, hospices, and organ procurement centers
• Health-related schools and education and research programs
• State agencies, such as Medicaid, CHIP, and public health
• Health insurance issuers and third party administrators
• Navigators
• HHS programs, such as CMS, HRSA, CDC, IHS, SAMHSA, the Federally-facilitated Marketplace, and the Basic Health Program
• State-based Marketplaces
• Employers offering employee health benefit programs (in certain circumstances)

Source: 45 C.F.R. § § 92.4, 92.208; 81 Fed. Reg. 31385, 31432, 31445.

Yet the fact that an entity or organization is a healthcare provider does not mean they are a Covered Entity.  For now the easiest method to decide whether a healthcare provider is a Covered Entity is as follows:

If the entity is a Medicaid Provider and/or has received incentive money thru the Electronic Health Record Incentive Program then the Provider is a Covered Entity for the purposes of ACA Section 1557.

The Kaiser Family Foundation provides a good summary of the rule and the same may be found at http://kff.org/report-section/summary-of-hhss-final-rule-on-nondiscrimination-in-health-programs-and-activities-issue-brief/.

But in case you don’t have the time to read the rule or the summary of the Kaiser Foundation then at the very least we recommend you read and implement the following:

• Develop and implement an effective written language access plan.
• Provide free, accurate, and timely language assistance services for individuals with Limited English Proficiency (LEP).
• Make reasonable modifications in policies, practices, and procedures to avoid disability-based discrimination.
• Take appropriate steps to ensure effective communication with people with disabilities.
• Alter buildings and facilities where health programs and activities are conducted so the same are readily accessible to and useable by people with disabilities.
• Ensure that health programs and activities that involve the use of medical equipment are accessible to people with disabilities.
• Make electronic and information technology in health programs and activities accessible to people with disabilities
• Post a notice regarding non-discrimination policies.
• Provide non-discrimination notice in English and include taglines in the top 15 languages spoken by individuals with LEP within the state.
• Designate one employee to coordinate the entity’s efforts to carry out Section 1557 responsibilities.
• Adopt a grievance procedure that incorporates appropriate due process standards and provides prompt and equitable resolution of grievances under Section 1557.

There are a few more details regarding the final rule and applicability yet the best advice we have is that if you are in doubt simply contact and expert to assist you with the applicability of the same based on your situation.