AMARILLO, TX – This article is Part 1 of 2 articles concerning health care providers obligations under the nondiscrimination provisions of the Affordable Care Act and its implementing regulations.

Section 1557 of the Affordable Care Act (42 U.S.C. § 18116) makes it unlawful for any health care provider that receives federal funds to discriminate against an individual on the basis of the individual’s race, color, national origin, sex, age, or disability. Section 1557 incorporated existing civil rights laws and protections against discrimination directly into the health care setting and empowered the Department of Health & Human Services (DHHS) to promulgate rules to effectuate the prohibitions on discrimination in health care.

In 2024, DHHS promulgated a Final Rule updating and expanding the obligations and requirements for health care providers to ensure they comply with Section 1557’s prohibition on discrimination in the provision of health care services. Under the new rule, found at 45 CFR § 92, health care providers must do the following:

• Adopt policies and procedures regarding nondiscrimination.
• Train employees on the policies and procedures regarding nondiscrimination.
• Designate a Civil Rights Coordinator.
• Provide free-of-charge language assistance services (qualified interpreter and translation services) to ensure meaningful access to health care services for individuals with limited English proficiency.
• Provide free-of-charge auxiliary aids (qualified interpreter services, braille, screen readers, larger text documents, recordings) to ensure meaningful access to health care services for individuals with disabilities.
• Provide patients with a notice of nondiscrimination. The notice should also be publicly posted in the provider’s place of business and website.
• Post publicly and provide patients with a notice of the availability of free-of-charge language assistance services and auxiliary aids.

Two Notices Required

1. Notice of Nondiscrimination

The Notice of Nondiscrimination should be provided on an annual basis to patients and upon request. The Notice of Nondiscrimination should be available at a “conspicuous location” on the provider’s website and posted in clear and prominent physical locations at the provider’s place of business, in 20-point sans serif font. The Notice of Nondiscrimination must comply with the rule’s content and information requirements. It should contain each of the following:

• A statement of nondiscrimination. For example: “The covered entity does not discriminate on the basis of race, color, national origin (including limited English proficiency and primary language), sex (consistent with the scope of sex discrimination described at § 92.101(a)(2)), age, or disability.”
• Statement of the availability of accommodations and modifications for individuals with disabilities, including interpreters and alternate formats for information, to ensure accessibility and equal opportunity.
• Statement of the availability of language assistance services, including electronic and written translated documents and oral interpretation, free of charge and in a timely manner, when the services are reasonably necessary to provide meaningful access to individuals with limited English proficiency.
• Information on how to obtain the reasonable modifications, auxiliary aids and services, and language services from the provider.
• Contact information for the provider’s Section 1557 Civil Rights Coordinator.
• The availability of the provider’s grievance procedure (only applicable to providers who employ fifteen or more people).
• Information on how to file a discrimination complaint with the Office of Civil Rights.
• Information on accessing the provider’s website.

2. Notice of Availability of Language Assistance Services and Auxiliary Aids

In addition to the Notice of Nondiscrimination, health care providers must provide a notice of availability of language assistance services and auxiliary aids (Notice of Language Assistance). This notice must, at a minimum, state that the health care provider offers language assistance services and appropriate auxiliary aids and services free of charge, when necessary for compliance with section 1557, to participants, beneficiaries, enrollees, and applicants of its health program or activities, and members of the public.

Like the Notice of Nondiscrimination, the Notice of Language Assistance must be provided at least annually and upon request. It also must be posted in a conspicuous location on the provider’s website and in clear and prominent physical locations in 20-point sans serif font. In addition, the Notice of Language Assistance must also be provided in electronic and written communications when the following forms are sent by a health care provider:

• Application and intake forms;
• Consent forms and instructions related to medical procedures or operations, medical power of attorney, or living will (with an option of providing only one notice for all documents bundled together);
• Discharge papers;
• Communications related to the cost and payment of care with respect to an individual, including medical billing and collections materials, and good faith estimates required by section 2799B-6 of the Public Health Service Act;
• Complaint forms;
• Notice of Nondiscrimination required by 45 CFR 92.10;
• Notice of Privacy Practices required by 45 CFR 164.520;
• Notices of denial or termination of eligibility, benefits, or services, including Explanations of Benefits and notices of appeal and grievance rights;
• Communications related to an individual’s rights, eligibility, benefits, or services that require or request a response from a participant, beneficiary, enrollee, or applicant; and
• Communications related to a public health emergency.

The rule also requires a provider to issue the notice in English and at least the 15 languages most commonly spoken by individuals with limited English proficiency of the relevant State.

Future Enforcement
The future enforcement of the provisions of the rule remains an open question. In 2020, the first Trump administration repealed several notice requirements previously implemented under Section 1557, so providers may expect to see the current administration take a similar approach and repeal the notice requirements discussed above or simply refuse to enforce them. We have seen potential indications of this already. For example, in late 2024, DHHS published a sample Notice of Language Assistance that was translated into 47 languages. The sample Notice has been removed from DHHS’s since the new administration took office in early 2025.

The new administration will likely modify the existing rule and its requirements, but providers who fail to comply with the rule’s current requirements risk being subjected to patient complaints, agency investigations, and noncompliance penalties.

For assistance with complying with the new notice requirements, contact the experienced attorneys at Brown & Fortunato.

Todd A. Moody, Esq., is an attorney with the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers and other health care providers throughout the United States. Mr. Moody can be reached at (806) 345-6332 or [email protected].

Matthew D. Earl, Esq., is an attorney with the Health Care Group at Brown & Fortunato, PC, a law firm with a national health care practice based in Texas. He represents pharmacies, infusion companies, HME companies, manufacturers and other health care providers throughout the United States. Mr. Earl can be reached at (806) 345-6360 or [email protected].