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Section 1557: Frequently Asked Questions

Frequently Asked Questions on the Estimates for the Top 15 Languages Spoken by Individuals with Limited English Proficiency

Frequently Asked Questions on Aggregation for the Tagline

General Questions about Section 1557

Frequently Asked Questions on the Estimates for the Top 15 Languages Spoken by Individuals with Limited English Proficiency

As a resource for covered entities, OCR has made available a table displaying OCR’s list of the top 15 languages spoken by individuals with limited English proficiency (LEP) in each State, the District of Columbia, Puerto Rico and each U.S. Territory.

Read the FAQs on the Top 15 Languages

(A .pdf file version of the FAQs on the Top 15 languages is available here)

Frequently Asked Questions on Aggregation for the Tagline

Read the FAQs on Aggregation for the Tagline for further information on applying the requirements to covered entities that operate health programs or activities in more than one state.

(A .pdf file version of the FAQs on the Aggregation for the Tagline is available here)

General Questions about Section 1557

On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al v. Burwell, enjoining the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. Accordingly, HHS’ Office for Civil Rights (HHS OCR) may not enforce these two provisions of the regulation implementing these same provisions, while the injunction remains in place. Consistent with the court’s order, HHS OCR will continue to enforce important protections against discrimination on the basis of race, color, national origin, age, or disability, as well as other sex discrimination provisions that are not impacted by the court’s order. 

1. What is Section 1557?

Section 1557 is the nondiscrimination provision of the Affordable Care Act (ACA). The law prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in health programs or activities that receive Federal financial assistance or are administered by an Executive agency or any entity established under Title I of the ACA. Section 1557 has been in effect since enactment of the ACA.

2. In what ways does Section 1557 protect consumers?

Section 1557 makes it unlawful for any health care provider that receives funding from the Federal government to refuse to treat an individual – or to otherwise discriminate against the individual – based on race, color, national origin, sex, age or disability. Section 1557 imposes similar requirements on health insurance issuers that receive federal financial assistance. Health care providers and insurers are barred, among other things, from excluding or adversely treating an individual on any of these prohibited bases. The Section 1557 final rule applies to recipients of financial assistance from the Department of Health and Human Services (HHS), the Health Insurance Marketplaces and health programs administered by HHS.

3. How is the final rule under Section 1557 different from rules under the other civil rights laws the Office for Civil Rights already enforces?

The final rule is consistent with existing, well-established Federal civil rights laws and clarifies the standards HHS will apply in implementing Section 1557 of the ACA. These standards provide that individuals cannot be denied access to health care or health coverage or otherwise be subject to discrimination because of race, color, national origin, sex, age, or disability.

Building on long-standing and familiar civil rights principles, the final rule is an important step toward eliminating unlawful discrimination in federally funded programs and HHS programs. Section 1557 is the first Federal civil rights law to broadly prohibit discrimination on the basis of sex in all federally funded health care programs. The final rule extends nondiscrimination protections to individuals enrolled in coverage through the Health Insurance Marketplaces and certain other health coverage. It also applies to HHS’s own health programs.

4. Is Section 1557 currently being enforced?

Section 1557 has been in effect since the enactment of the ACA in 2010. Since that time, the Office for Civil Rights (OCR) has been receiving and investigating discrimination complaints under Section 1557.

5. What is the effective date for the final rule?

The final rule is effective 60 days after publication in the Federal Register. There are three situations in which covered entities have additional time to comply with the rule’s requirements: posting notices of consumer rights and taglines; accessibility standards for buildings not previously covered by the Americans with Disabilities Act; and design changes to health coverage.

6. What can I do if I believe my civil rights under Section 1557 have been violated?

If you feel that you have been subject to discrimination in health care or health coverage, you may file a complaint of discrimination under Section 1557. Please visit OCR’s website at www.hhs.gov/ocr to file a complaint or to request a complaint package, or call OCR’s toll free number at (800) 368-1019 or (800) 537-7697 (TDD) to speak with someone who can answer your questions and guide you through the process. OCR’s complaint forms are available in a variety of languages. Individuals can also file lawsuits under Section 1557.

7. Why is OCR issuing a final rule addressing Section 1557?

OCR is issuing this final rule to educate consumers about their rights and to help covered entities understand their legal obligations under Section 1557. The final rule builds on the standards of the four Federal civil rights laws referenced in Section 1557 and their implementing regulations: Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. Among other things, the final rule implements prohibitions against sex discrimination in federally funded health care programs and establishes standards that apply to the Health Insurance Marketplaces and health programs administered by HHS.

8. Who does the final rule apply to?

The final rule applies to every health program or activity that receives HHS funding, every health program or activity administered by HHS, such as the Medicare Part D program, and the Health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces. Covered entities may include hospitals, health clinics, health insurance issuers, state Medicaid agencies, community health centers, physician’s practices and home health care agencies.

While the final rule applies only to HHS and the health programs and activities it funds, the Section 1557 statute applies more broadly to health programs and activities that receive financial assistance from any Federal department or agency.

9. Does the final rule apply to the Marketplaces?

Yes, both the Federally-facilitated Marketplaces and the State-based Marketplaces are covered by Section 1557.

10. How are covered entities supposed to let consumers know about their rights?

The final rule requires all covered entities to post a notice of consumer civil rights; covered entities with 15 or more employees are also required to have a civil rights grievance procedure and an employee designated to coordinate compliance. Under a new requirement, covered entities are required to post information telling consumers about their rights and telling consumers with disabilities and consumers with limited English proficiency (LEP) about the right to receive communication assistance. They are also required to post taglines in the top 15 languages spoken by individuals with LEP in the states in which the covered entity operates, advising consumers of the availability of free language assistance services

To minimize burden on covered entities, OCR has prepared a model notice and model nondiscrimination statement that covered entities can use if they choose to do so; covered entities are free to create their own notices or statements if they wish.  For more information about translated notices and taglines, visit www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/index.html.

11. What does the final rule require for individuals with limited English proficiency (LEP)?

The final rule adopts the longstanding civil rights principle that covered entities must take reasonable steps to provide meaningful access to each individual with LEP. The standards incorporated into the final rule are flexible and context-specific, taking into account factors such as the nature and importance of the health program and the communication at issue and other relevant considerations, such as whether an entity has developed and implemented an effective language access plan appropriate to its circumstances.

12. What does the final rule require concerning individuals with disabilities?

The final rule is consistent with existing directives implementing the requirements under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. It requires effective communication, including through the provision of auxiliary aids and services; establishes standards for accessibility of buildings and facilities; requires that health programs provided through electronic and information technology be accessible; and requires covered entities to make reasonable modifications to their policies, procedures, and practices to provide individuals with disabilities access to a covered entity’s health programs and activities.

13. What types of discrimination constitute discrimination on the basis of sex?

Under the final rule, sex discrimination includes, but is not limited to, discrimination on the basis of pregnancy, gender identity and sex stereotyping. More than 25 years ago, the U.S. Supreme Court held that discrimination based on stereotypical ideas about gender is unlawful sex discrimination.

While the final rule does not resolve whether discrimination on the basis of an individual’s sexual orientation status alone is a form of sex discrimination under Section 1557, the rule makes clear that OCR will evaluate complaints that allege sex discrimination related to an individual’s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under 1557. HHS supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments on this issue.

Pursuant to court order, OCR is enjoined from enforcing the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. For information about the court order, please see above.

14. Why did OCR choose to include provisions that specifically address equal program access on the basis of sex in health programs and activities?

Many of the provisions of the final rule incorporate long-standing principles and protections of civil rights law and thus will be familiar to entities governed by the final rule. The final rule provides additional guidance in areas for which application of these principles may not be as familiar. Because Section 1557 is the first Federal civil rights law that broadly prohibits sex discrimination in all federally funded health care programs and activities, the final rule contains provisions designed to educate consumers and covered entities specifically about sex discrimination in the health care context. OCR is also providing additional information about the application of nondiscrimination principles to health insurance and other health coverage.

15. What does the provision that specifically addresses equal program access on the basis of sex in health programs and activities require?

The final rule requires covered entities to provide individuals equal access to health programs and activities without discrimination on the basis of sex and to treat individuals consistent with their gender identity. This provision applies to all health programs and activities, including with regard to access to facilities, administered by the covered entity.

Pursuant to court order, OCR is enjoined from enforcing the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. For information about the court order, please see above.

16. What does the provision regarding nondiscrimination in health insurance and other health coverage prohibit?

The final rule prohibits covered entities from discriminating on the basis of race, color, national origin, sex, age or disability when providing or administering health-related insurance or other health-related coverage. This prohibition applies to all health insurance issuers that are recipients of Federal financial assistance, which includes premium tax credits and cost sharing reductions associated with coverage offered through the Health Insurance Marketplaces or Medicare Parts A, C and D payments.

Under the final rule, a covered entity cannot: deny, cancel, limit, or refuse to issue or renew a health-related insurance policy or other health-related coverage; deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions; or employ marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability. The final rule does not require plans to cover any particular benefit or service or prohibit issuers from determining whether a particular health service is medically necessary, but a covered entity cannot have a coverage policy that operates in a discriminatory manner.

The final rule also prohibits a covered entity from denying or limiting coverage, denying or limiting a claim, or imposing additional cost sharing or other limitations, on any health services that are ordinarily or exclusively available to individuals of one gender, based on the fact that an individual’s sex assigned at birth, gender identity, or recorded gender is different than the one to which the health care services are ordinarily or exclusively available. For example, when a plan covers medically appropriate pelvic exams, coverage cannot be denied for an individual for whom a pelvic exam is medically appropriate based on the fact that the individual either identifies as a transgender man or is enrolled in the health plan as a man.

Under the final rule, categorical coverage exclusions or limitations for all health services related to gender transition are discriminatory.  Also, a covered entity cannot deny or limit coverage, deny or limit a claim, or impose additional cost sharing or other limitations or restrictions, for any specific health services related to gender transition if such denial, limitation or restriction results in discrimination against a transgender individual.

Pursuant to court order, OCR is enjoined from enforcing the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. For information about the court order, please see above.

17. Does the final rule cover employment discrimination?

The final rule provides limited coverage of employment discrimination. The final rule prohibits an employer that receives Federal financial assistance that is principally engaged in providing health care or health coverage, such as a hospital or nursing home, from discriminating in employee health benefits. The final rule also applies to employee health benefits offered by an entity that is not principally engaged in providing health care or health coverage if the entity receives Federal funding that is specifically for the employee health benefit program itself or for a particular health program. In the latter situation, however, only the employees who work for the health program would be covered by the rule. The final rule’s treatment of employment discrimination under Section 1557 does not change the protections under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, or the other civil rights statutes referenced in Section 1557.

18. Does the final rule include a religious exemption?

The final rule on Section 1557 does not include a religious exemption; however, the final rule does not displace existing protections for religious freedom and conscience.

19. Can I review the final regulation?

Yes. You can review a copy of the final regulation at www.federalregister.gov

20. Can I get a copy of the regulation in large print, Braille, or some other alternative format?

Yes. To get a copy in an alternative format, please contact the Office for Civil Rights and provide the specifications for the format. To contact us, call our toll-free number at (800) 368-1019 or (800) 537-7697 (TDD) for assistance.

21. What is the date by which a covered entity must comply with the posting requirements in § 92.8 of the Section 1557 regulation?

The effective date for these specific requirements is October 17, 2016[1]. In general, covered entities may satisfy these requirements either by including the required notice and taglines on the significant publication or communication itself or by creating an insert to be enclosed with the publication or communication.  For covered entities with current stock of hard copy significant publications and communications that were printed before the effective date of the Section 1557 regulation (July 18, 2016), such entities may exhaust existing stock but should consider enclosing an insert of the required notice and taglines with the publication or communication.

22. Section 1557 and its implementing regulation (Section 1557) require covered entities to post – in their significant publications and communications – nondiscrimination notices in English, as well as taglines in at least the top 15 languages spoken by individuals with limited English proficiency (LEP) in the State(s) served [2]What are some examples of documents that are not considered significant publications or communications?

The following are not significant publications and significant communications under Section 1557:

  • Radio or television ads;
  • Identification cards (used to access benefits or services);
  • Appointment cards;
  • Business cards;
  • Banners and banner-like ads;
  • Envelopes; or
  • Outdoor advertising, such as billboard ads.

23. For significant publications and communications that are small-sized, covered entities must post at least a nondiscrimination statement in English and taglines in at least the top two languages spoken by individuals with LEP of the State(s) served[3]. What are publications and communications that are small-sized?
Examples of documents that are “small-sized” include:

  • Postcards,
  • Tri-fold brochures, and
  • Pamphlets.

Significant publications and significant communications that are presented on 8.5 x 11 inch paper are not considered “small-sized,” even if the information conveyed fits on one side of a page. 

24. Is the Notice of Privacy Practices required by the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule at 45 C.F.R. § 164.520 a communication that is “significant” under § 92.8 of the Section 1557 regulation?  If so, does a Section 1557 covered entity’s inclusion of the nondiscrimination notice and taglines with the entity’s Notice of Privacy Practices constitute a “material change,”[4] thus requiring the entity to promptly revise and distribute its Notice of Privacy Practices?

The Notice of Privacy Practices required by the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule is a communication that is “significant” under § 92.8 of the Section 1557 regulation. The inclusion of the Section 1557 nondiscrimination notice and taglines with the entity’s Notice of Privacy Practices does not constitute a “material change” of that entity’s Notice of Privacy Practices.  Section 1557’s nondiscrimination notice advises individuals of their Section 1557 civil rights and therefore does not constitute a change in privacy policies and practices regulated under the HIPAA Privacy Rule. Therefore, revision and distribution, in accordance with 45 C.F.R. § 164.520, of an entity’s Notice of Privacy Practices is not required.

25. Is the written Summary of Benefits and Coverage (SBC) required by 45 C.F.R. § 147.200(a) a publication that is “significant” under § 92.8 of the Section 1557 regulation?  If so, Federal regulations limit the SBC’s length to four double-sided pages[5]. Does a Section 1557 covered entity’s inclusion of the nondiscrimination notice and taglines with its SBC count against the regulatory page limit?

The written summary of benefits and coverage required by 45 C.F.R. § 147.200(a) is a publication that is “significant” under § 92.8 of the Section 1557 regulation.  The Centers for Medicare & Medicaid Services (CMS) requires the use of an addendum to the SBC to accommodate applicable language access standards[6]. Accordingly, covered entities required to provide a SBC must include the nondiscrimination notice and taglines required by § 92.8(b)(1), (d)(1) in its addendum along with other applicable language access standards. This addendum must contain only the Section 1557 nondiscrimination notice and taglines and other applicable language access information.

26. Which publications and communications are “significant” with respect to the posting requirements in § 92.8?

Covered entities 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. Examples of publications and communications that OCR considers to be “significant” 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. In contrast, OCR would not generally view all of an entity’s outreach, education, and marketing materials to be categorized as “significant.” Specifically, OCR clarifies that the following marketing publications and communications are not “significant” for purposes of the posting requirements in § 92.8: radio or television ads; banner and banner like ads; envelopes; or outdoor advertising such as billboard ads.

Age Discrimination

27. Would the enactment of a state benefit mandate for a specific age group (for example, children) violate Section 1557?

No. Enacting a mandate for a specific age group does not violate Section 1557. As clarified in the preamble to the Section 1557 regulation, under § 92.101 of subpart B, “age distinctions contained in Federal, State, or local statutes or ordinances adopted by an elected, general purpose legislative body are not covered by the final rule. States may adopt new laws that contain age distinctions; those distinctions would not violate the final rule.” OCR notes that age limits may violate Centers for Medicare & Medicaid (CMS) regulations under the Affordable Care Act and covered entities are responsible for ensuring compliance with all applicable CMS regulations and other Federal laws.[7]

Compliance Coordinators

28. Does Section 1557 require a covered entity with multiple locations throughout the country to have a coordinator at each of its locations to coordinate compliance with Section 1557?

It depends. Section 92.7(a) of the Section 1557 regulation requires each covered entity with 15 or more employees to designate at least one employee to coordinate efforts to comply with and implement the entity’s responsibilities under Section 1557, including the investigation of grievances. Whether each physical location is its own covered entity under Section 1557 is a question of fact that OCR would need to evaluate on a case-by- case basis.

OCR recognizes that not all covered entities are organized and operate the same way; OCR is not managing how covered entities ensure their compliance. To this end, the Section 1557 regulation aims to preserve covered entities’ flexibility by specifying that each covered entity must have “at least one employee.” This language – “at least one” – read in light of the preamble at 81 Fed. Reg. 31376, 31394-95 (May 18, 2016), does, however, contemplate that in some circumstances, a covered entity may need to designate more than one employee to fulfill the substantive coordination, implementation, and investigation responsibilities stated in §92.7(a).

Effective Date for Addressing Gender-coding

29. By what date are covered entities required to make changes to address gender-coding issues?

July 18, 2016 was the effective date for making necessary modifications in claims processing systems to address problems with gender-based coding. OCR does recognize, however, that some issuers use computer systems that accommodate only binary gender billing codes that flag a gender mismatch for coverage of certain sex-specific services. This is permissible on an interim basis if it does not result in a delay of services or processing of a claim for services. OCR expects issuers to use feasible interim methods, until their computer systems are updated, for correcting initial coverage denials due to computer systems flagging a gender mismatch. Issuers have flexibility in designing such interim methods for processing claims for sex-specific services by transgender individuals as long as the process is not overly burdensome and provides timely access to care and coverage. See the discussion in the Preamble to the Final Rule. 81 Fed. Reg.31376, 31436 (May 18, 2016).

Pursuant to court order, OCR is enjoined from enforcing the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. For information about the court order, please see above.

Assurance of Compliance

30. Where can I find the Assurance of Compliance form (Form HHS 690)?

The Assurance of Compliance Form (HHS 690) can be found on OCR’s website, at (Form HHS-690).

31. When does a covered entity have to submit the Assurance of Compliance form?

Covered entities that are recipients of Federal financial assistance from HHS and have a form 690 on file with HHS do not need to submit a new form to replace the form on file. However, when a covered entity applies or reapplies for Federal financial assistance from HHS on or after July 18, 2016, the entity will need to sign, date, and submit the new Assurance of Compliance Form.

32. Is there just one Assurance of Compliance Form that each covered entity must sign, or do different types of covered entities, or entities from different States, sign different forms?

There is just one Assurance of Compliance form (Form HHS 690), and each covered entity is required to sign, date, and submit the same form.

Definitions of Terms

33. What is the difference between a “covered entity” and a “recipient?”

The 1557 regulation includes definitions of both terms at Section 92.4. A recipient is an entity that receives Federal financial assistance and operates a health program or activity. A covered entity includes recipients, entities established under Title I of the Affordable Care Act, and the Department of Health & Human Services.

Medicare Advantage Plans

34. Some covered entities participate in Medicare Advantage (MA) plans (Medicare Part C plans). Others do not and therefore do not receive direct reimbursement from an MA plan; their patients pay providers directly for services and submit claims to an MA plan based on the provider’s fees. If an MA plan reimburses the patient rather than the entity, is it covered by Section 1557?

Entities that receive reimbursement from an MA plan (including dental practices) must comply with Section 1557. Funds provided under the Medicare program (except for funds provided under Medicare Part B) constitute Federal financial assistance. The entity must comply with the regulation regardless of whether the MA plan reimburses the patient or the entity.

Effective Date for Compliance in Claims Processing

35. Is claims processing considered a part of health insurance and health plan benefit design or administration? What is the effective date for compliance with the Section 1557 regulation for claims processing?

The effective date for the provisions of the final Section 1557 regulation, including those concerning the administration of health insurance or other health-related coverage, is July 18, 2016. Claims processing is considered to be administration of health plans or health coverage, not plan design. Thus, it is not affected by the January 1, 2017, application date for benefit design changes in the regulation. See the discussion in the Preamble to the Final Rule. 81 Fed Reg. 31431 (May 18, 2016).

Effective (Applicability) Date for Medicaid Agencies

36. Are Medicaid agencies subject to the July 18, 2016, effective date or the January 1, 2017 applicability date? What if they contract with Managed Care Organizations or other entities to operate Medicaid managed care plans? Are the Medicaid managed care plans subject to the July 18, 2016 effective date or January 1, 2017 applicability date?

Medicaid agencies are subject to the July 18, 2016 effective date. They are not health insurance issuers under Section 1557, and thus the applicability date of January 1, 2017 for health insurance and group health plan benefit design changes does not apply to them, whether or not they have contracted with other entities to administer Medicaid managed care plans. Managed Care Organizations and other entities that operate Medicaid managed care plans are not operating as insurers when they contract to operate these plans, so these plans are also subject to the July 18, 2016 effective date, and not the applicability date of January 1, 2017.

Language Assistance

37. What resources or funding are available to covered entities to provide language assistance services?

There is no dedicated funding available to covered entities to implement the nondiscrimination provisions of Title VI and Section 1557 that prohibit discrimination on the basis of national origin and require covered entities to take reasonable steps to provide meaningful access to individuals with limited English proficiency.  Under the Medicaid and Children's Health Insurance Programs, States can elect to reimburse health providers for the cost of written translation and oral interpretation services and receive Federal matching funds for these services when claimed as administrative expenses or as medical assistance-related expenses.  However, not all States provide such reimbursements.[8]

HHS OCR has training materials, technical assistance materials, and sample policies and procedures on its website – see, for instance, http://www.hhs.gov/civil-rights/for-individuals/special-topics/hospitals-effective-communication/limited-english-proficiency/. Covered entities can also call OCR at 1-800-368-1019 if they have questions about the Section 1557 resources on our website, or entities can email 1557@hhs.gov.

38. If a covered entity provides a significant publication or significant communication in a non-English language, does the entity still have to post a nondiscrimination notice (or statement, as applicable) and taglines, with such publication or communication?  If so, does the entity have to provide the nondiscrimination notice in the non-English language in which the significant publication or significant communication is written?

The nondiscrimination notice and tagline posting requirements in 45 C.F.R. § 92.8 apply to significant publications or communications written in any language.  For example, a covered entity that provides a significant publication written in Chinese must include the nondiscrimination notice (or statement, as applicable) and taglines.

The regulations permit a covered entity to provide the nondiscrimination notice (or statement, as applicable) in English or in the non-English-language in which the covered entity provides the significant publication or communication.  For example, it would be sufficient for a covered entity to provide a nondiscrimination notice in English even if the notice accompanies a significant publication or communication translated into Spanish.  Regardless of the language in which the entity provides the significant publication or the nondiscrimination notice, the entity must post taglines with the significant publication.

39. Is a covered entity required by 45 C.F.R. § 92.8 to post the notice of nondiscrimination (or nondiscrimination statement, as applicable) in non-English languages?  If not, why does OCR make available the nondiscrimination notice and statement in 64 languages?

Under § 92.8, it is sufficient for the covered entity to provide the nondiscrimination notice (or statement, as applicable) in English only.  OCR encourages covered entities to post the notice (or statement, as applicable) in one or more of the most prevalent non-English languages frequently encountered by covered entities in their geographic service areas.  To this end, OCR makes available the notice and statement in 64 languages for entities’ use: http://www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/index.html

40. To meet its obligations under Section 1557, can a health program or activity receiving Federal financial assistance from the U.S. Department of Health and Human Services (HHS) use the HHS call center number and thus rely on HHS to provide oral interpretation for an individual with limited English proficiency who is eligible to be served or likely to be encountered by the health program?

It is not HHS’s role, or the purpose of the HHS call center, to provide oral interpretation services for all entities covered by Section 1557 and its implementing regulation (Section 1557).  OCR encourages covered entities to work together to leverage their resources to provide language assistance services in the most cost-effective and efficient ways to meet their respective obligations under § 92.201.  OCR also encourages professional associations and organizations to consider what role they can play in helping their members meet the requirements of § 92.201. 

For example, the Washington State Medicaid Interpreter Services Program centralizes the provision of language assistance services to achieve economies of scale.[9]   Similarly, through OCR’s Effective Communication in Hospitals Initiative, the Kentucky Hospital Association built the capacity to offer its approximately 120 member hospitals access to a telephonic interpretation service contract that offers a volume-based discount rate [10].   Although OCR cannot certify that these approaches uniformly enable entities to meet the requirements of Section 1557, they do represent examples of the types of collaborative action that covered entities may consider.

41. The sample tagline OCR makes available on its website and in appendix B to the Section 1557 regulation includes a placeholder for a telephone number and directs individuals to call the number to obtain language assistance services, free of charge.  What telephone number is a covered entity supposed to provide?   Should the covered entity insert its own telephone number?  Or, should the covered entity provide the number of a telephonic oral interpretation vendor that provides qualified interpreters for the entity’s health programs or activities? 

The phone number included in the tagline should be the covered entity’s phone number.  As soon as the covered entity identifies that the caller has a limited ability to speak English and is speaking a non-English language, the covered entity should access a qualified interpreter via a telephonic oral interpretation vendor who can orally interpret the conversation between the caller with limited English proficiency and the covered entity.  If the covered entity has difficulty identifying the language that a caller speaks, the telephonic oral interpretation service should be able to assist in identifying the language spoken by the caller to obtain the appropriate qualified interpreter.

42. If a covered entity has arranged to provide a qualified interpreter for an appointment, and the individual with limited English proficiency fails to attend the appointment, is the covered entity responsible for paying for the language assistance services it arranged to be provided?  Can the covered entity charge a “no show” fee to persons with limited English proficiency who fail to cancel or do not show for an appointment?

Whether the covered entity is charged a fee by its telephonic interpretation vendor when an individual with limited English proficiency fails to attend an appointment is a contractual matter between the vendor and the covered entity.  However, under Section 1557 and its implementing regulation, an individual cannot be charged for oral interpretation services, even if such services were scheduled for an appointment that an individual with limited English proficiency missed.[11]

43. Does the use of an electronic program that translates written content satisfy the requirements of Section 1557?  For example, some apps for written translation are marketed as translating written content on demand.

Section 1557 and its implementing regulation do not prohibit the use of automated translation technologies.  However, because written translation must be provided by a qualified translator, automated translation alone likely would not be sufficient.[12]   Machine translation, which is one type of automated translation technology, translates text by performing simple substitution of words using statistical techniques.  Given differences across languages in syntax, figures of speech, and vocabulary, the simple substitution of words using statistical techniques may produce highly unreliable translations for certain languages and written content.  A quality check performed by a qualified translator, such as reviewing the translation for accuracy and editing the translation if needed, would likely be necessary.[13]    OCR encourages covered entities to understand the strengths and weaknesses of the technology and software programs that qualified translators use.[14]

Sex Discrimination

44. Does Section 1557 permit covered entities to limit some health research to only males or females?

Sex-specific programs or activities (those in which participation is limited to one sex only), including health research, are allowed only where a covered entity can show an exceedingly persuasive justification for the limitation to one sex. To establish an exceedingly persuasive justification, a covered entity must show that the sex-based classification is substantially related to the achievement of an important health-related or scientific objective. A covered entity must supply objective evidence, and empirical data if available, to justify the need to restrict participation in a health program to only one sex. Justifications that rely on overly broad generalizations about the sexes are not acceptable.

Health researchers will typically be able to show an exceedingly persuasive justification for a sex-specific clinical trial based on research protocols. These include protocols that target or exclude certain populations in order to account for the health or safety of the subjects, the study design, or the purpose of the research. For example, certain psychotropic drugs are known to affect women and men differently; men’s kidneys tend to filter certain antianxiety medication more rapidly than women. Based on this scientific knowledge, a medical research institution that is a covered entity and that runs a clinical trial to test a modified release mechanism to slow the drug filtration and excretion in men’s kidneys may permissibly exclude women from the trial under the standards set forth above.

45. What does Section 1557 require with regard to general medical care for transgender individuals?

Under Section 1557, discrimination on the basis of sex includes discrimination on the basis of gender identity; the law thus prohibits discrimination against transgender individuals. This prohibition imposes several types of obligations on covered entities. For example, covered entities, as a general matter, must provide transgender individuals equal access to programs, including facilities, without discrimination and consistent with an individual’s gender identity. Moreover, health care professionals may not deny treatment to a transgender individual based on the fact that the individual is transgender, if the health care professional would provide the same treatment for a non-transgender individual. For example a general practitioner may not refuse to treat a transgender male for a broken arm, based on the individual’s transgender status, if he or she would treat the broken arm of individuals who are not transgender.

Pursuant to court order, OCR is enjoined from enforcing the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. For information about the court order, please see above.

46. What does Section 1557 require with regard to the provision of, or coverage for, sex-specific health services for transgender individuals?

As a general matter, if a transgender individual needs a sex-specific health service, covered entities may not deny that service because the individual is transgender. For example, if a transgender woman has a prostate, and prostate exams are recommended for men of her age and/or risk factors, an internal medicine practice may not refuse to provide a medically indicated prostate exam to her because she identifies as a woman or because her records or identification identify her as female.

Similarly, covered health insurance plans may not deny or limit claims for sex-specific health services for a transgender individual based on the fact that an individual’s sex assigned at birth, gender identity, or gender otherwise recorded in a record does not correspond to the gender of individuals to whom the service is typically provided. For example, a covered health insurance plan could not deny coverage of a claim for a medically indicated pap smear based on the fact that the patient identifies as a transgender man. Covered entities must determine coverage of a claim for health services by applying the same nondiscriminatory terms and conditions to everyone, regardless of the individual’s sex assigned at birth, gender identity, or recorded gender.

Notably, Section 1557 also prohibits categorical exclusions or limitations of all gender transition- related services in health insurance plans or other health coverage covered by Section 1557.

In addition, in relation to coverage for specific health services related to gender transition, covered entities must utilize a neutral nondiscriminatory rule or principle in deciding whether to deny or limit claims for specific health services for a transgender individual. For example, if a health insurance plan denies coverage for hormone therapy that a patient’s provider says is medically necessary to treat gender dysphoria while approving coverage for medically necessary hormones used to treat different conditions, OCR would evaluate the reasons why coverage for the same treatment is available to individuals with different health conditions and expect the covered entity to provide a neutral, nondiscriminatory reason for the denial that is not a pretext for discrimination.

Pursuant to court order, OCR is enjoined from enforcing the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. For information about the court order, please see above.

47. Does Section 1557 prohibit harassment based on sex, including on the basis of sex stereotyping?

Consistent with longstanding principles of Federal civil rights principles, Section 1557 prohibits harassment based on race, color, national origin, sex, age or disability. Covered entities must respond promptly and effectively to sex-based harassment of individuals in their health programs or activities, by taking action to eliminate the harassment, prevent its recurrence and address its effects. For example, if a male nursing home resident is harassed by staff based on his non-conformity with stereotypical notions of how a man is expected to act or appear (including mannerisms, apparel, or grooming choices), that may constitute discrimination on the basis of sex that must be addressed by the entity. The nursing home must take action to stop the staff harassment, prevent it from recurring and address the effects of the harassment. In addition, the nursing home should adopt policies addressing sex-based harassment to make clear that such harassment is not tolerated in the workplace.

48. Is it prohibited under Section 1557 to treat married men differently than married women?

Section 1557 prohibits discrimination on the basis of sex in health programs or activities. Thus, a covered entity may not apply a rule concerning marital status that treats individuals differently on the basis of sex. For example, a hospital may not have a policy or practice that automatically assigns a male spouse as the sole financially responsible party for a female spouse’s health care, but does not also automatically assign a female spouse as the sole financially responsible party for a male spouse’s medical services.

Health Insurance

49. Does Section 1557 prohibit discrimination in health insurance and other health coverage?

Section 1557 and the Department’s implementing regulation prohibit discrimination on the basis of race, color, national origin, sex, age, or disability in the provision or administration of health-related insurance or other health-related coverage offered by recipients of Federal financial assistance or the Health Insurance Marketplaces or provided by the Department of Health and Human Services (HHS or the Department)[15]. In addition, covered entities are prohibited from having or using marketing practices or benefit designs that unlawfully discriminate[16]. Although Section 1557 does not require an issuer to cover a particular type of care or service, covered entities must use neutral, nondiscriminatory criteria in making decisions as to which benefits and services to cover, and their health coverage cannot operate in a discriminatory manner.[17]

50. What constitutes “Federal financial assistance” under Section 1557?

Under the Section 1557 regulation, “Federal financial assistance” means any grant, loan, credit, subsidy, contract (other than a procurement contract, but including a contract of insurance), or any other arrangement by which the Federal government provides or otherwise makes available funds or other types of assistance[18]. It includes all tax credits the Department plays a role in providing under Title I of the ACA, including payments extended by the Department to or on behalf of an individual to help pay for health-related insurance coverage,[19]. Thus, if a health insurance issuer provides health insurance on the MarketplaceSM for which tax credits or premium assistance are provided, the issuer must ensure that its plans comply with Section 1557.

51. Do Federal employment nondiscrimination laws also apply to insurance discrimination?

Several laws prohibit covered employers, unions, and other entities from discriminating based on race, color, national origin, religion, sex, age, disability, or genetic information when providing benefits to their employees, including insurance. These laws include Title VII of the Civil Rights Act of 1964[20], the Age Discrimination in Employment Act[21], the Equal Pay Act[22], Title I of the Americans with Disabilities Act[23], Section 501 of the Rehabilitation Act[24], and Title II of the Genetic Information Nondiscrimination Act[25]. The Equal Employment Opportunity Commission (EEOC) enforces these laws[26], which pre-date the Affordable Care Act (ACA) and which apply separate and apart from the ACA's nondiscrimination requirements. Thus, both Section 1557 and employment nondiscrimination laws may apply in some circumstances where health benefits are offered through an employee health plan. By contrast, some activities may be subject to either Section 1557 or employment nondiscrimination laws but not both. For example, outside the employment context, Section 1557, but not the employment laws, applies to federally funded health programs and activities, including those offered by insurance issuers[27]. On the other hand, the employment nondiscrimination laws apply to a universe of employers that is broader than those to which Section 1557 applies.

Claims under Section 1557 may be filed with HHS OCR by going to this link: http://www.hhs.gov/civil-rights/filing-a-complaint/index.html. For information about filing a charge of discrimination with the EEOC against an employer under statutes that the EEOC enforces, including concerning discrimination with respect to employer-provided health or life insurance, go to www.eeoc.gov. OCR and the EEOC will coordinate to ensure that claims are handled by the appropriate agency.

52. What issuers are prohibited from discriminating in health insurance or health coverage under Section 1557?

Section 1557 of the ACA, and the Department’s implementing regulation, apply to:

  • All health programs or activities that receive HHS funding;
  • All health programs or activities administered by HHS itself (e.g., by the Centers for Medicare & Medicaid Services or the Substance Abuse and Mental Health Services Administration); and,
  • The Health Insurance Marketplaces and plans offered by issuers that participate in those Marketplaces.

A “health program or activity” is defined as “the provision or administration of health-related services or health related insurance coverage or other health-related coverage, and the provision of assistance to individuals in obtaining health-related services or health related insurance coverage.”[28] Thus, covered entities include entities that provide or administer health insurance or other health coverage[29]. These entities are prohibited from discriminating in the provision or administration, including marketing and design, of health insurance or other health coverage under Section 1557.

Issuers participating in the Marketplaces are receiving Federal financial assistance through advanced premium tax credits and cost-sharing reduction subsidies and therefore must comply with Section 1557 in the plans that they offer. Absent any defense, issuers that are principally engaged in providing health insurance are covered for all of their activities, including off-Marketplace plans.Issuers participating in the Marketplaces are receiving Federal financial assistance through advanced premium tax credits and cost-sharing reduction subsidies and therefore must comply with Section 1557 in the plans that they offer. Absent any defense, issuers that are principally engaged in providing health insurance are covered for all of their activities, including off-Marketplace plans.[30]

Third party administrators are covered by Section 1557 for the health benefits they administer if they receive Federal financial assistance either directly or because they are part of a recipient organization that is principally engaged in health services, health insurance or health coverage.

However, if the decision that resulted in discrimination relates to the design, rather than the administration, of a plan, OCR will typically investigate a complaint against the employer providing the benefits rather than against the third party administrator. If OCR lacks jurisdiction over the employer, it will typically refer or transfer the matter to the EEOC.[31]

53. Under what circumstances are employers liable for discriminating in health insurance or health coverage under Section 1557?

Employers will be held accountable under Section 1557 for discrimination in the employee health benefit programs they provide to employees and/or dependents in three circumstances:[32]

  1. the employer receives Federal financial assistance and is principally engaged in providing or administering health services, health insurance, or other health coverage; or
  2. the employer receives Federal financial assistance, a primary purpose of which is to fund the entity's employee health benefit program; or
  3. the employer is not principally engaged in providing or administering health services, health insurance, or other health coverage but operates a health program or activity, which is not an employee health benefit program, that receives Federal financial assistance; in this situation the employer must comply with Section 1557 in the provision or administration of employee health benefits only to the employees in that health program or activity.[33]

For example, a hospital that provides health benefits to its employees is covered by Section 1557 in the health benefits it provides to all employees, including employees who work in the cafeteria, because the hospital is principally engaged in providing health services. By contrast, where a housing program receives Federal financial assistance to operate a diabetes screening program for housing residents, but is not principally engaged in providing health services or coverage, its employee health benefits are covered by Section 1557 only with respect to the employees of the diabetes screening program.

54. If a covered entity that provides or administers health insurance or other health coverage complies with other Federal civil rights laws, such as Title VII of the Civil Rights Act and Title VI of the Civil Rights Act, is it automatically in compliance with Section 1557?

Section 1557 is independent of and in addition to other requirements of other Federal civil rights laws[34]. However, OCR coordinated with other Federal agencies in drafting the Section 1557 regulation and will continue to work with other Federal agencies to ensure consistency to the extent appropriate.[35]

55. Are non-spousal dependents who receive health coverage through a parent’s employer protected under Section 1557 from discrimination in the health coverage they receive?

Section 1557 prohibits discrimination against an “individual,”[36] including non-spousal dependents who are covered by another individual’s health plan.[37] The purpose of Section 1557 is to ensure that “individuals” have access to health insurance and health services and to eliminate discriminatory and other barriers to accessing coverage and care[38]. Thus, whether or not discrimination against non-spousal dependents is covered under other laws, such as Title VII or Title IX, an employer’s health benefit plan may not discriminate against non-spousal dependents under Section 1557.[39]

56. If an employer or health issuer is required to make changes in the design of its health insurance or other health coverage to comply with Section 1557, what is the deadline for doing so?

Section 1557 went into effect on March 23, 2010.[40]. The final regulation was published by the Department on May 18, 2016.[41]. The final regulation became effective on July 18, 2016, with the exception of provisions of the regulation that require changes to health insurance or group health plan benefit design, which apply as of the first day of the first plan year (or, in the individual market, policy year) beginning on or after January 1, 2017.[42] As noted in the preamble to the final rule, OCR recognizes that some covered entities will have to make changes to their health coverage to bring that coverage into compliance with the final rule; OCR is “sensitive to the difficulties that making changes in the middle of a plan year could pose for some covered entities and is committed to working with covered entities to ensure that they can comply with the final rule without causing excessive disruption for the current plan year.” [43]

Gender-Coding

57. What is a gender-coding mismatch?

Covered entities offering private health insurance or health coverage through the Medicare and Medicaid programs may use automated billing practices to process claims for services, including procedure codes and diagnosis codes to identify which service was performed and why it was performed. As part of this process, some services are coded as sex-specific, meaning that they are only provided for one sex. The automated billing process then denies claims for services when there is a gender mismatch between the gender of the individual receiving the treatment or service and the billing code associated with the biological sex that typically receives that service. For example, a gender-coding mismatch can occur when a transgender male seeks coverage for treatment of ovarian cancer, due to the fact that the individual’s gender (male) does not align with the gender (female) that typically receives that service. A gender-coding mismatch can also occur when the gender of the individual receiving the treatment or service is different from the gender identified in the covered entity’s records. For example, this can occur when a transgender male seeks coverage for a broken arm, but the computer system denies the claim because the individual’s gender (male) does not align with the individual’s gender (female) that had been originally recorded in the system.

Pursuant to court order, OCR is enjoined from enforcing the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. For information about the court order, please see above.

58. How can a covered entity address gender-coding mismatch issues?

OCR recognizes that covered entities have certain requirements as to their claims processing systems. Issuers are free to develop their own methods for addressing gender-coding mismatches, but as an example, OCR suggests that covered entities consider using a unique billing code modifier that a health care provider could submit, along with a claim for sex-specific services for a transgender patient, which would alert the issuer that it should override any sex-specific billing codes. This modifier could be similar to the condition code 45 under Medicare Part A or the KX modifier under Medicare Part B that is used by the Centers for Medicare & Medicaid Services to address inappropriate denials of coverage for care and services typically thought of as gender-specific. When used alongside standard billing codes for specific procedures, this additional code alerts Medicare’s computer system to ignore an apparent gender mismatch and thus allows the claim to be processed.[44]

The Section 1557 rule preamble specifies that covered entities should develop methods for correcting coverage denials due to computer systems flagging a gender mismatch. Such flagging by itself would not be impermissible if it does not result in a delay or denial of services or a claim for services. However, as the preamble makes clear, once a covered entity is aware that a gender code mismatch is causing a delay or denial of services or a claim for services, the entity must develop a another method to process claims for sex-specific services by transgender individuals. The method developed may not be overly burdensome and must provide timely access to care. Thus, requiring transgender employees to repeatedly go through internal appeals processes to obtain coverage for certain services would subject these enrollees to a burdensome process that is likely to delay their receipt of coverage or timely payment of a claim. Instead, issuers could notate in the individual’s file that the individual is transgender to ensure that such services are approved in the future or utilize a billing code modifier as discussed above.

Pursuant to court order, OCR is enjoined from enforcing the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. For information about the court order, please see above.

59. Does a doctor’s office have to provide a qualified interpreter for a visit with a patient who is deaf or hard of hearing?

In accordance with § 92.202 of the Section 1557 regulation, a covered entity must take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with individuals without disabilities in health programs and activities.  In evaluating its obligations, the covered entity should consider several factors:

  • The covered entity has an obligation to take appropriate steps to ensure effective communication in its telecommunications, which includes the initial phone contact.
  • The covered entity may not rely on a companion of an individual with a disability to interpret for that individual except in very narrow circumstances.
  • Where the individual requests a qualified interpreter in advance of the appointment in sufficient time for the covered entity to arrange for a qualified interpreter and a qualified interpreter is necessary for effective communication, the qualified interpreter must be available at the time of the appointment. 
  • The duty to take appropriate steps to ensure effective communication applies to communications with deaf or hard of hearing companions of patients, as well as patients. 
  • If the covered entity knows from past interactions or should know from available records that a qualified interpreter is needed for effective communication in an upcoming patient visit, the covered entity needs to provide a qualified interpreter.

60. Can a nursing home exclude from admission individuals with certain conditions?

A covered entity may not deny an individual the opportunity to participate in or benefit from an aid, benefit, or service on the basis of his or her disability when the individual meets all of the essential eligibility requirements for the health program or activity.  For example, an eligible individual may not be denied admission to an assisted living facility based on his or her HIV status (a disability under Federal civil rights laws). 

61. May covered entities use health research protocols that target or exclude individuals with disabilities?

A covered entity conducting health research may design research protocols that target or exclude certain populations when necessary to protect the health or safety of the subjects or serve the purpose of the research.  For example, a medical research institution that is a covered entity may exclude individuals who are deaf from a clinical trial designed to investigate a new brain imaging technology for assessing cognitive functioning where that trial relies on auditory stimulation as the test stimulus.  This research design would not be discriminatory on the basis of disability because there is a nondiscriminatory justification for excluding individuals who are deaf.  On the other hand, if an individual’s disability does not interfere with the purpose of the study or the health or safety of the participants, an individual with a disability may not be excluded on the basis of his or her disability.

62. Must a health provider that is a covered entity have accessible medical equipment?

A covered entity may not deny an individual with a disability an equal opportunity to participate in and benefit from its health programs and activities.  That means that a covered entity must provide access to medical services, including diagnostic services, to an individual with a disability.  A covered entity has flexibility in how it meets this obligation.  For example, the covered entity can use different types of accessible medical diagnostic equipment or have enough staff to assist the patient to transfer from a wheelchair to an examination table, if that approach is effective for an individual with the disability. For more information, please see joint HHS and DOJ guidance that addresses these issues in greater detail, Access to Medical Care for Individuals with Mobility Disabilities, http://www.ada.gov/medcare_mobility_ta/medcare_ta.htm.

63. Must a covered health plan ensure that providers in its network have accessible medical equipment?

A covered managed care plan or other covered plan does not have to ensure that all providers in the network have accessible medical and diagnostic equipment.  However, the plan should: (a) ensure that a sufficient number of providers in its network have accessible medical and diagnostic equipment to allow individuals with disabilities to receive necessary diagnostic exams, or, (b) take other steps to provide accessible services, such as ensuring that a process is available for allowing an individual with a disability to go out of network at no additional charge to receive these services. 

64. Does the website of a covered entity have to be accessible?

A covered entity must ensure that its health programs or activities provided through electronic and information technology are accessible to individuals with disabilities, unless doing so would result in undue financial and administrative burdens or a fundamental alteration in the nature of the health programs or activities.  For example, a Health Insurance Marketplace creating a website for application for health insurance coverage must ensure that individuals with disabilities have access to the benefit of the website’s tool that allows comparison of health insurance coverage options, quick determination of eligibility, and facilitation of timely access to health insurance coverage by making its new website accessible to individuals who are blind or who have low vision.

65. If a patient requests to be treated only by staff persons of a particular racial group, would it be a violation of the Section 1557 regulation if the covered entity honored that request?

It is unlawful discrimination for a covered entity to assign staff on the basis of race, color, or national origin, even if such a request is made by a patient or resident.

66.  May a Section 1557 covered entity decide not to serve a particular geographic area whose residents are predominantly of a particular racial group based on concerns about the safety of the area?

Covered entities may not refuse or limit services on the basis of race in determining the geographic area where they will provide a health program or activity.  This prohibition includes situations in which covered entities make assumptions about safety based on the race of the neighborhood’s residents.  For example, a home health agency may not decline to serve certain streets or housing complexes, where the areas are selected based on assumptions that the areas are unsafe because of the race or national origin of the area’s residents.

67. Are immigrants protected from discrimination on the basis of national origin under Section 1557?

Yes.  The protections of Section 1557 do not differ based on a person’s immigration status. Further, covered entities may not administer their health programs in a manner that has a discriminatory impact on individuals of any particular national origin, even if the policy or practice is facially neutral.  For example, a State Medicaid agency should consider whether a requirement to disclose the immigration status of non-applicant parents applying for health benefits on behalf of eligible children discriminates against the eligible children on the basis of national origin because the requirement may deter parents from seeking benefits for their eligible children.

Section 1557 does not alter programmatic laws and regulations that restrict eligibility for particular health programs to persons of certain immigration or citizenship statuses. Section 1557 allows covered entities to make requests for such information when required by federal or state law for purposes of determining eligibility.  But where individuals are legally eligible for benefits, they may not be subject to discrimination in those benefit programs on the basis of national origin and the other bases prohibited under Section 1557.

68. How can a covered entity meet its obligation to take reasonable steps to provide meaningful access to individuals with limited English proficiency (LEP) in its health programs and activities?

OCR will evaluate an entity’s compliance by using a fact-dependent, contextualized analysis.  OCR will give substantial weight to the nature and importance of the health program and the particular communication at issue.  OCR will also consider other relevant factors, such as: (a) the length, complexity, and context of the communication; (b) the prevalence of the language in which the individual communicates among those eligible to be served or likely to be encountered; (c) the frequency with which a covered entity encounters the language in which the individual communicates; (d) all resources available to the covered entity; (e) the cost of language assistance services and whether a covered entity has availed itself of cost-saving opportunities; and  (f) whether a covered entity has explored the individual’s preference, if any, for a type of language assistance service.   OCR will also take into account whether the entity developed and implemented an effective, written language access plan.

For example, if a Spanish-speaking individual with LEP seeks a surgery consultation regarding a gallbladder removal procedure with a physician at a large hospital, the hospital should evaluate the appropriate level, type and manner of language assistance services to be provided by considering and giving substantial weight to the nature and importance of the health care. If the population of Spanish-speaking individuals with LEP is large and the hospital’s contacts with such individuals are frequent, and if the resources available to a large hospital are considerable, the hospital will likely have to provide the Spanish-speaking individual with LEP interpretation services from a staff interpreter, contracted interpreter or other qualified interpreter or through a bilingual physician. 

69. How can a covered entity meet its obligation to take reasonable steps to provide meaningful access if an individual speaks an uncommon language?

The underlying approach outlined above is the same even if the individual speaks an uncommon language.  For example, if an individual with LEP who speaks Urdu seeks information about Medicaid eligibility from a State Medicaid agency, that agency should consider and give substantial weight to the nature and importance of health insurance enrollment. The State Medicaid agency may consider the proportion of Urdu-speaking individuals with LEP served or encountered by the agency; the frequency with which Urdu-speaking individuals with LEP come in contact with the agency; and the resources available to the agency and costs of the language assistance services.  Even if the population of, and frequency with which the State Medicaid agency serves or encounters Urdu-speaking individuals with LEP is small and relatively infrequent, these factors could be  outweighed by the nature and importance of Medicaid program enrollment.  Although an agency is permitted to consider the resources it has available, low-cost commercial language services, such as telephonic oral interpretation services, are now widely available.  As a result, OCR may find that the State Medicaid agency was capable of providing the Urdu-speaking individual with LEP telephonic interpretation services to ensure meaningful access to the program.

70. Does a covered entity have any flexibility in its provision of language assistance to individuals with LEP?

Yes, depending on the circumstances, so long as it takes reasonable steps to provide meaningful access to a health program or activity.  The covered entity should analyze the facts in light of the factors set forth in the question above.  For instance, if a small clinic discharges an individual with LEP who speaks Tagalog (a language rarely encountered by the clinic) after providing treatment for a sprained ankle and the individual requests a translated brochure on healthy eating, the covered entity would not be required to translate the brochure for that individual primarily because the subject of the brochure is unrelated to the condition for which the patient was seeking treatment and the clinic rarely serves individuals with LEP who speak Tagalog.  However, the entity would be required to take other reasonable steps to provide meaningful access to the individual.  Such steps could include, depending on the facts, using a telephonic interpretation service to orally walk the individual with limited English proficiency through the information in the brochure in Tagalog.

71. Does Section 1557 require covered entities to have a language access plan?

Section 1557 does not require covered entities to have a language access plan.  Nonetheless, the regulation encourages covered entities to develop and implement an effective written language access plan, appropriate to its circumstances, that addresses the needs of the limited English proficient population in the service area of its health programs or activities.  A written language access plan has long been recognized as a helpful tool to ensure adequate and timely provision of language assistance services and often may be necessary to meet the requirements of the law in a timely manner. A language access plan need not be long, complex, or burdensome.

The nature and extent of the voluntary planning in which a covered entity may choose to engage will vary depending on the entity’s particular health programs and activities, its size, its geographic location, and other factors. Effective language access plans often, among other components, address how the entity will determine an individual’s primary language, particularly if the language is an unfamiliar one; identify a telephonic oral interpretation service to be able to access qualified interpreters when the need arises; identify a translation service to be able to access qualified translators when the need arises; identify the types of language assistance services that may be required under particular circumstances; and identify any documents for which written translations should be routinely available.

72. When is it permissible to treat people differently on the basis of age? 

Under the Section 1557 regulation, the general rule prohibiting the denial or limitation of access based on age is limited by the following exception:   A covered entity may reasonably take age into account if it is a factor necessary to the normal operation or achievement of a statutory objective of a health program or activity.  Even then, the entity is only permitted to consider age as one factor as part of its overall decision-making.

For example, the U.S. Preventive Services Task Force recommends screening for colorectal cancer beginning at age 50 and continuing until age 75.  If a 25 year old requests screening for colon cancer, a medical practice should conduct an individualized assessment of the patient, including whether the patient presents any risk factors, such as family history, the presence of symptoms or other medical conditions, or lifestyle factors that might make the patient an appropriate candidate for this screening.  If the assessment demonstrates that the screening is not medically appropriate, the practice may decline to conduct the screening, even if the practice would have conducted the assessment, based on the Task Force guidelines, had the patient been 50 years old or older.  This approach would be permissible since the entity reasonably took age into account as one factor, among other factors that it considered.  Furthermore, waiving cost sharing only for individuals age 50 to 75 in accordance with the preventive service requirements of the Affordable Care Act would be permissible, because age distinctions contained in Federal statutes which describe intended beneficiaries or target groups in age-related terms are not covered by the Section 1557 regulation.

On the other hand, suppose an organ transplant center has a policy that automatically disallows heart transplants to all individuals aged 65 or older.  While it would be permissible for the transplant center to consider age as one factor in assessing the allocation of transplants, the entity’s blanket exclusion of individuals based solely on age is discriminatory.

73. How does the regulation apply to age rating in health insurance? 

Under the regulation, any age distinction contained in a regulation issued by HHS is presumed to be necessary to the achievement of a statutory objective of the program.  For example, regulations issued by HHS implementing the Affordable Care Act permit health insurance issuers in the individual and small group markets to charge premiums based on age, within a 3:1 ratio.  Thus, age rating within these parameters is permissible under the Section 1557 regulation.

74. May a State have age limits on certain benefits provided by issuers?

The regulation does not apply to age distinctions contained in State or local statutes that were adopted by an elected, general purpose legislative body.  For instance, some State statutes permit health insurance issuers to limit coverage of hearing aids to individuals of a certain age.  This age limit would not violate Section 1557 because it is authorized under State law.

However, covered entities should be mindful of other legal requirements, including those issued by the Centers for Medicare & Medicaid Services that prohibit age limits and distinctions. [45],

 

[1] 45 C.F.R. § 92.8(b)(1), (d)(1).  The notice and taglines must also be posted in conspicuous physical locations where the entity interacts with the public and in a conspicuous location of the covered entity’s website, accessible from the home page.  § 92.8(f)(1)(ii)-(iii).
[2] The October 17th date applies to all covered entities, even those that have until January 1, 2017, or later, to comply with other provisions, such as those requiring the revision of benefit designs.
[3] 45 C.F.R. § 92.8(b)(2), (d)(2), (g)(1)-(2). 
[4] An entity covered by the HIPAA Privacy Rule must revise and distribute its Notice of Privacy Practices when there is a material change to any of the entity’s privacy practices described in the notice, including changes to the entity’s uses or disclosures of protected health information, an individual’s rights, the covered entity’s legal duties, or other privacy practices.  See 45 C.F.R. § 164.520(b)(3). 
[5] See 45 C.F.R. § 147.200(a)(3).
[6] See, e.g., U.S. Dep’t of Health & Human Servs., Ctrs. for Medicare & Medicaid Servs., Guidance and Population Data for Exchanges, Qualified Health Plan Issuers, and Web-Brokers to Ensure Meaningful Access by Limited-English Proficient Speakers Under 45 CFR 155.205(c) and 156.250 (Mar. 30, 2016), https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Language-access-guidance.pdf; U.S. Dep’t of Health & Human Servs., Centers for Medicare & Medicaid Servs., Final 2017 Letter to Issuers in the Federally-Facilitated Marketplaces, 80 (Feb. 29, 2016), https://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/Final-2017-Letter-to-Issuers-2-29-16.pdf.  Independent of the tagline requirement of the Section 1557 regulation, issuers of qualified health plans are required by other authorities to include taglines with the SBC.  See, e.g., 45 C.F.R. § 147.200(a)(5) (requiring the SBC to be provided in a culturally and linguistically appropriate manner in accordance with the standards at § 147.136(e)).
[7] For example, under 45 CFR 156.125(a), an issuer does not provide Essential Health Benefits if its benefit design, or the implementation of its benefit design, discriminates based on an individual's age, expected length of life, present or predicted disability, degree of medical dependency, quality of life, or other health conditions. In its 2017 Letter to Issuers, CMS noted, for example, that it might be arbitrary to limit coverage for a hearing aid to enrollees who are six years of age and younger since there may be some older enrollees for whom a hearing aid is medically necessary. Center for Consumer Information and Insurance Oversight, CMS, 2017 Letter to Issuers in the Federally-facilitated Marketplaces (Feb. 29, 2016).
[8] U.S. Dep’t. of Health & Human Servs. (HHS), Center for Medicare & Medicaid Servs. (CMS), Information Bulletin 2 (Apr. 26, 2011), http://www.medicaid.gov/Federal-Policy-Guidance/downloads/Info-Bulletin-4-26-11.pdf; HHS, CMS, Recently Released Policy Guidance—CHIPRA and the ACA, Information Bulletin 1–2 (Jul. 9, 2010), http://www.medicaid.gov/Federal-Policy-Guidance/downloads/07-09-2010-CHIPRA-and-ACA.pdf; HHS, CMS, Increased Federal Matching Funds for Translation and Interpretation Services under Medicaid and CHIP (Jul. 1, 2010), http://www.medicaid.gov/Federal-Policy-Guidance/downloads/SHO10007.pdf
[9] See Washington State Health Care Auth., Interpreter Services Program, www.hca.wa.gov/medicaid/interpreterservices (last visited May 4, 2016).
[10] See Kentucky Hospital Association, Effective Communication in Hospitals, http://www.kyha.com/CM/Initiatives/Safety_and_Quality_Resources/Effective_Communication_in_Hospitals.aspx (last visited May 4, 2016).
[11] 45 C.F.R. § 92.201(c).
[12] 45 C.F.R. § 92.201(d)(2); 81 Fed. Reg. 31,376, 31,417 (May 18, 2016).
[13] 81 Fed. Reg. at 31,417.
[14] For considerations on ensuring the quality of translations, see Kleber Palma, Migration Policy Institute, Strategies to Help Covered Entities Ensure Quality of Translations, http://www.migrationpolicy.org/programs/languageaccess-translation-and-interpretation-policies-andpractices/practitioners-corner (last visited Mar. 23, 2016); Jessica Sperling, Migration Policy Institute, Practitioner’s Corner: Drafting Request for Proposals and Contracts for Language Assistance Services, http://www.migrationpolicy.org/programs/language-access-translation-and-interpretationpolicies-and-practices/practitioners-corner-drafting (last visited May 4, 2016).
[15] 45 C.F.R. § 92.207(a).
[16] 45 C.F.R. § 92.207(b)(2).
[17] 81 Fed. Reg. 31429.
[18] 45 C.F.R. § 92.4.
[19] Id.
[20] 42 U.S.C. §§ 2000e – 2000e-17; 2000ff-1-2000ff-11; 12111-12117.
[21] 29 U.S.C. §§ 621-634, 791.
[22] 29 U.S.C. § 206 (d).
[23] 42 U.S.C. § 12101 et seq.
[24] 29 U.S.C. § 791.
[25] Pub. L. 110-233, 122 Stat. 881.
[26] The Department of Justice enforces Title VII of the Civil Rights Act of 1964 (Title VII) with respect to state and local government employers.
[27] For example, Section 1557 applies to federally funded health insurance issuers.
[28] Id.
[29] 45 CF.R. § 92.4.
[30] See 81 Fed. Reg. 31376, 31428.
[31] See discussion of § 92.208 in the preamble at 81 Fed. Reg. 31432.
[32] This is true regardless of whether the benefits are provided through an insurance policy, an ERISA plan, or a multi-employer plan, and regardless of who administers the benefits. 45 C.F.R. § 92.208.
[33] Section 1557 does not apply to employment, except as provided in. 45 C.F.R. § 92.208.
[34] 42 U.S.C. § 18116(c); 45 C.F.R. § 92.3(b).
[35] The Section 1557 statute has an exception to the prohibition on discrimination: Section 1557 applies “[e]xcept as provided in Title I of the ACA.” However, this does not mean that Section 1557 prohibits only actions that are already prohibited under other ACA requirements. For example, the ACA excludes certain benefits from market reforms (“excepted benefits”), but these benefits are not excluded from coverage under Section 1557. 81 Fed. Reg.31430-31431.
[36] 42 U.S.C. § 18116(a); 45 C.F.R. § 92.101(a)(1).
[37] 45 C.F.R. § 92.208.
[38] 81 Fed. Reg. 31377.
[39] See 29 C.F.R. pt. 1604 App. A, Questions and Answers on the Pregnancy Discrimination Act, Q. 21 (Title VII does not prohibit exclusions from coverage of pregnancy-related conditions in health benefits for dependents, as long as the exclusion applies to the non-spousal dependents of male and female employees); 45 C.F.R. § 86.51(b)(1) (prohibiting discrimination in fringe benefits to employees of educational institutions “on the basis of the employee’s sex”); 45 C.F.R. § 86.39 (prohibiting discrimination in health services and health insurance against students only if the benefits would be discriminatory if provided to employees).

Title VII protects employees from discrimination in the terms and conditions of employment. See 42 U.S.C. § 2000e-2(a)(1) which prohibits to an employer from discriminating against any individual in “compensation, terms, conditions, or privileges of employment . . . .”

Title IX protects employees and students of educational institutions from sex discrimination. See 42 U.S.C. § 2000e-2(a)(1) which prohibits to an employer from discriminating against any individual in “compensation, terms, conditions, or privileges of employment . . . .”
[40] 42 U.S.C. 300gg–11 note.
[41] 81 Fed. Reg. 31376 (May 18, 2016) (codified at 45 C.F.R. pt. 92).
[42] 45 C.F.R. § 92.1.
[43] 81 Fed. Reg. 31378.
[44] CMS Manual System, Pub 100-04 Medicare Claims Processing Manual, Transmittal 1877, Instructions Regarding Processing Claims Rejecting for Gender/Procedure Conflict (Dec. 18, 2009).
[45] See 45 CFR 156.125(a); U.S. Dep’t of Health & Human Servs., Ctrs. for Medicare & Medicaid Servs., 2017 Letter to Issuers in the Federally-facilitated Marketplaces, 45 (Feb. 29, 2016) (stating that age limits may be discriminatory when applied to services that have been found clinically effective at all ages, such as age limits for hearing aids).

Content created by Office for Civil Rights (OCR)
Content last reviewed on May 18, 2017