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ACA Requiring Covered Entities to provide translators, Post New Anti-Discrimination Signs (Language Access) and adopt policies by July 18, 2016

October 18, 2016 

FOR ASSISTANCE WITH POLICIES AND IMPLEMENTATION, CALL JENNIFER IF NEED BE. 

Starting January 1, 2017 covered entities are required to post new notices, and certain covered entities are required to have implemented new procedures to protect against discrimination.  On May 13, 2016, the HHS Office for Civil Rights issued the final rule implementing of Section 1557, which requires:
  • Covered entities with 15 or more employees to have a grievance procedure and a compliance coordinator. See model grievance procedure for covered entities below. Entities with fewer than 15 employees are not required to have a grievance procedure or compliance coordinator.
  • The final rule requires that covered entities post notices of nondiscrimination and taglines that alert individuals with limited English proficiency to the availability of language assistance services. See sample policies herewww.hhs.gov/civilrights/for-individuals/section-1557/translated-resources/index.html.
  • The final rule requires each covered entity to post taglines in at least the top 15 non-English languages spoken in the State in which the entity is located or does business. Those requirements are modified for small sized significant communications such as postcards; for these, the final rule requires entities to post a nondiscrimination statement and taglines in at least the top two non-English languages spoken by individuals with limited English proficiency in the State. See sample policies here www.hhs.gov/civilrights/for-individuals/section-1557/translated-resources/index.html.

Under the updated law covered entities are required to provide translation services to limited English proficiency patients, required as a reasonable accommodation. 
Even if you are private healthcare provider who is not receiving any federal funds, you are still required to make reasonable accommodations for your LEP patients.  Also clear -  Providers are required to provide the required services  “at no cost to the individual,” and most providers will not qualify for reimbursement. There is limited reimbursement available for language access services. State Medicaid Programs and Children’s Health Insurance Programs (CHIP) are authorized to access federal matching funds to reimburse for language access services at the standard 50% federal matching rate for translation/interpretation activities that are claimed as an administrative expense, so long as they are not included and paid for as part of the rate for direct services. See https://www.medicaid.gov/medicaid-chip-program-information/by-topics/financing-and-reimbursement/translation-and-interpretation.html. Some states reimburse the doctor $12.16 per hour, while others provide reimbursements for the usual and customary fee. See Table 1 available athttp://www.ncbi.nlm.nih.gov/pmc/articles/PMC2150609/table/Tab1/  You can use staff members as translators so long as they meet the credentials specified under ACA. 
 
For more information about Translation Services requirements, view our recent article in the Queens County Dental Society newsletter - http://www.qcds.org/wp-content/uploads/2015/12/QCDS-Bulletin-Sept-Oct-for-web.pdf


SAMPLE GRIEVANCE PROCEDURE FROM FINAL RULE - 

Appendix C to Part 92—Sample Section 1557 of the Affordable Care Act Grievance Procedure

It is the policy of [Name of Covered Entity] not to discriminate on the basis of race, color, national origin, sex, age or disability. [Name of Covered Entity] has adopted an internal grievance procedure providing for prompt and equitable resolution of complaints alleging any action prohibited by Section 1557 of the Affordable Care Act (42 U.S.C. 18116) and its implementing regulations at 45 CFR part 92, issued by the U.S. Department of Health and Human Services. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability in certain health programs and activities. Section 1557 and its implementing regulations may be examined in the office of [Name and Title of Section 1557 Coordinator], [Mailing Address], [Telephone number], [TTY number—if covered entity has one], [Fax], [Email], who has been designated to coordinate the efforts of [Name of Covered Entity] to comply with Section 1557.

Any person who believes someone has been subjected to discrimination on the basis of race, color, national origin, sex, age or disability may file a grievance under this procedure. It is against the law for [Name of Covered Entity] to retaliate against anyone who opposes discrimination, files a grievance, or participates in the investigation of a grievance.

Procedure:

  • Grievances must be submitted to the Section 1557 Coordinator within (60 days) of the date the person filing the grievance becomes aware of the alleged discriminatory action.
  • A complaint must be in writing, containing the name and address of the person filing it. The complaint must state the problem or action alleged to be discriminatory and the remedy or relief sought.
  • The Section 1557 Coordinator (or her/his designee) shall conduct an investigation of the complaint. This investigation may be informal, but it will be thorough, affording all interested persons an opportunity to submit evidence relevant to the complaint. The Section 1557 Coordinator will maintain the files and records of [Name of Covered Entity] relating to such grievances. To the extent possible, and in accordance with applicable law, the Section 1557 Coordinator will take appropriate steps to preserve the confidentiality of files and records relating to grievances and will share them only with those who have a need to know.
  • The Section 1557 Coordinator will issue a written decision on the grievance, based on a preponderance of the evidence, no later than 30 days after its filing, including a notice to the complainant of their right to pursue further administrative or legal remedies.
  • The person filing the grievance may appeal the decision of the Section 1557 Coordinator by writing to the (Administrator/Chief Executive Officer/Board of Directors/etc.) within 15 days of receiving the Section 1557 Coordinator's decision. The (Administrator/Chief Executive Officer/Board of Directors/etc.) shall issue a written decision in response to the appeal no later than 30 days after its filing.

The availability and use of this grievance procedure does not prevent a person from pursuing other legal or administrative remedies, including filing a complaint of discrimination on the basis of race, color, national origin, sex, age or disability in court or with the U.S. Department of Health and Human Services, Office for Civil Rights. A person can file a complaint of discrimination electronically through the Office for Civil Rights Complaint Portal, which is available at:https://ocrportal.hhs.gov/?ocr/?portal/?lobby.jsf, or by mail or phone at: U.S. Department of Health and Human Services, 200 Independence Avenue SW., Room 509F, HHH Building, Washington, DC 20201.

Complaint forms are available at: http://www.hhs.gov/?ocr/?office/?file/?index.html. Such complaints must be filed within 180 days of the date of the alleged discrimination.

[Name of covered entity] will make appropriate arrangements to ensure that individuals with disabilities and individuals with limited English proficiency are provided auxiliary aids and services or language assistance services, respectively, if needed to participate in this grievance process. Such arrangements may include, but are not limited to, providing qualified interpreters, providing taped cassettes of material for individuals with low vision, or assuring a barrier-free location for the proceedings. The Section 1557 Coordinator will be responsible for such arrangements.


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