G2 Compliance Corner

MODEL SECTION 1557 CIVIL RIGHTS GRIEVANCE PROCEDURE
How to Comply with New ACA Non-discrimination Requirements

Background
Section 1557 of the Affordable Care Act (ACA) requires covered entities to take certain actions to ensure they comply with their duty not to discriminate on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. Section 92.7 of the ACA final rule specifies two things entities must do to meet their nondiscrimination obligations:

• Section 92.7(a) requires designation of an employee responsible for carrying out Section 1557 compliance efforts (which, for simplicity's sake, we will refer to as "1557 coordinator"); and

• Section 92.7(b) requires the establishment of a grievance procedure to ensure fast and fair resolution of grievances under Section 1557.

Here are two user questions we received regarding these Section 1557 requirements, which took effect on July 18, 2016.

Question 1: Must the 1557 Coordinator Be an Attorney?
Can we designate a manager, technologist or pathologist to be the 1557 coordinator, or does it have to be an attorney?

Answer
No, the 1557 coordinator does not necessarily have to be an attorney. You can make any employee the coordinator as long as he/she can perform the role without a conflict of interest.

Explanation
Note that you may not have to designate a 1557 coordinator at all if your lab or pathology practice is really small. The 1557 coordinator requirement applies only to covered entities that employ 15 or more persons.

Moreover, Section 92.7(a) of the final rule says that the 1557 coordinator must be an employee but does not specify the kind of employee he/she must be or position he/she must hold. In fact, its comments to the final rule, the Dept. of Health and Human Services Office of Civil Rights (OCR) confirms that the rule "does not prescribe" who within the entity may serve as 1557 coordinator.

The OCR also says that it is okay to combine the coordinator's function with other related duties, e.g., the person in charge of your civil rights compliance under Section 504 of the Americans with Disabilities Act can serve as 1557 coordinator, "as long as there is no conflict of interest."

Question 2: Can We Rely on Our Existing Grievance Procedure?
What has to be in the grievance procedure? Can we rely on our existing Section 504 procedure or do we have to create a whole new one for Section 1557?

Answer
You can extend your current Section 504 procedure as long as it meets the OCR's criteria.

Explanation
After OCR first proposed the Section 92.7(b) grievance procedure rule, several commenters asked the agency to specify what the procedure should contain. But the agency declined saying it wanted covered entities to show "flexibility" in implementing the rule. But the OCR did offer guidance and even published a model at the end of the final rule that we adapted and improved to create the Model Section 1557 Grievance Procedure on page 11.

How to Create a Section 1557 Grievance Procedure
While not officially binding, the Model Procedure is a useful template that you can use to develop a grievance procedure for your own lab. Like the Model, your procedure should:

• State your lab's general non-discrimination policy (Model, par. 1);

• Clarify that the procedure is intended to serve that policy (Model, par 2);

• List the nitty-gritty procedural details, starting with the deadline for submitting a grievance (which we set at 60 days in accordance with the OCR model) (Model, par. 3(a));

• Say that the grievance must be in writing and specify the information it must contain (Model, par. 3(b));

• Explain that the 1557 coordinator will investigate grievances internally (Model, par. 3(c));

• Indicate that the 1557 coordinator will take steps to preserve the confidentiality of the grievor and related grievance records (Model, par. 3(d));

• Require the 1557 coordinator to issue a decision within 30 days (Model, par. 3(e));

• Describe the appeal rights of the person who files the grievance (Model, par. 4);

• Explain that the grievance procedure is not intended to be exhaustive and that persons filing grievances have the right to pursue other remedies (Model, par. 5);

• Indicate that appropriate accommodations will be made so that persons with disabilities and/or limited English proficiency can participate in the grievance process (Model, par. 6); and

• Specify that individuals will not be subject to retaliation for filing grievances or taking part in grievance investigation under the procedure (Model, par. 7).

For more on discrimination, see "Job Interviews: How to Ask Personal Questions Without Committing Discrimination," GCA, Aug. 2016.