By Margaret Young Levi and Kathie McDonald-McClure

Among the many mandates of the Affordable Care Act (ACA) (a/k/a “Obama Care”) still in force today is Section 1557. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. The U.S. Department of Health & Human Services (HHS) Office for Civil Rights (OCR) is the agency vested with responsibility for implementing and enforcing Section 1557. On May 16, 2016, OCR issued a Final Rule that requires entities covered by the ACA to notify beneficiaries, enrollees, applicants, or members of the public of Section 1557’s nondiscrimination prohibitions. This notice must be included in the entity’s “significant” publications and communications.

You might ask, “Why am I reading about this on a legal blog about privacy and security?”  This is because OCR determined that the Notice of Privacy Practices, which healthcare providers and health plans issue to patients and plan members, is a “significant” publication or communication. As a result, health care providers and health plans that are subject to both Section 1557 and the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) must add the Section 1557 nondiscrimination notices and taglines to their Notice of Privacy Practices. Health plans should add such notices and taglines to their Summary of Benefits and Coverage as well.

Providers and plans are required to inform consumers of their nondiscrimination rights by posting an English-language notice plus taglines in 15 languages advising consumers of the availability of free language assistance services. HHS has supplied sample notices and taglines to help providers comply. If the Notice of Privacy Practices is small-sized (such as a tri-fold brochure or pamphlet), then the Final Rule permits a covered entity to substitute a shorter nondiscrimination statement in lieu of the full notice, and taglines in two non-English languages in lieu of all 15 taglines.

These notices and taglines must be (1) posted in a conspicuous location on the home page of the website, (2) posted in a conspicuous physical location where the covered entity interacts with the public, and (3) included in “significant” publications and  communications targeted to beneficiaries, enrollees, applicants, or members of the public, which may include patient handbooks, outreach publications, or written notices pertaining to rights or benefits or requiring a response from an individual. Providers and plans were required to post these notices and taglines starting in October 2016.

While OCR recognized that providers and plans are in the best position to determine, within reason, which of their communications and publications are significant in the context of their own health programs and activities, it weighed in on publications and communications that it considers to be “significant” or “not significant.” OCR clarified that the following marketing publications and communications are “not significant”: radio or television ads, banner ads, envelopes, or outdoor advertising such as billboards. On the other hand, “significant” publications and communications include applications to participate in, or receive benefits or services from, a covered entity’s health program or activity, as well as written correspondence related to an individual’s rights, benefits, or services, including correspondence requiring a response.

The OCR issued FAQs with additional guidance concerning the compliance with Section 1557 for the following documents, among others:

• HIPAA Notice of Privacy Practices. Since HHS does not characterize these changes to the Notice of Privacy Practices as “material,” HIPAA covered entities do not have to “promptly” revise and distribute their Notices of Privacy Practices within 60 days (of October 17, 2016).  Instead, they were allowed to continue using then existing supplies of already printed Notices of Privacy Practices, but should add the Section 1557 notice and taglines before printing the next batch.
• Summary of Benefits and Coverage. HHS also answers in FAQs that the written Summary of Benefits and Coverage (SBC) required by 45 C.F.R. § 147.200(a) is another publication that is “significant” under Section 1557 and should be revised to include the Section 1557 notice and taglines. While federal regulations limit the SBC’s length to four double-sided pages, the Centers for Medicare & Medicaid Services (CMS) will permit a Section 1557 covered entity to include the nondiscrimination notice and taglines in an addendum to the SBC to accommodate applicable language access standards. CMS warns that this addendum must contain only the Section 1557 nondiscrimination notice and taglines and other applicable language access information.

If entities that are covered by both the ACA and HIPAA have not already done so, consider revising both of these documents to include the required nondiscrimination notice and taglines.