SUMMARY OF NEW REQUIREMENTS FOR HEALTH CARE PROVIDERS UNDER SECTION 1557 OF THE AFFORDABLE CARE ACT
The U.S. Department of Health and Human Services (HHS) recently promulgated regulations to implement Section 1557 of the Affordable Care Act, which prohibits discrimination in certain health programs and activities based on race, color, national origin, sex, age or disability. The new rule requires that health care entities subject to Section 1557 provide notice of their nondiscriminatory policies to the public.
WHO MUST COMPLY WITH SECTION 1557?
The federal rule applies to: (i) all health programs and activities that receive federal financial assistance from HHS; (ii) health programs administered by HHS and (iii) Health Insurance Marketplace and issuers that participate in those Marketplaces.
The term "federal financial assistance" means reimbursement under the Medicaid program, reimbursement under Medicare Parts A, C and D, receipt of federal grants, receipt of federal property, and tax credits and cost-sharing subsidies under Title I of the Affordable Care Act. The term federal financial assistance also refers to receipt of incentive payments from Medicare or Medicaid in connection with implementation and adoption of an electronic health records (EHR) system. Please note that HHS has taken the position that payments made to a health care entity under Medicare Part B do not qualify as federal financial assistance. Entities covered by the regulation include hospitals, health clinics, physician practices, community health centers, nursing homes, rehabilitation centers, health insurance issuers and State Medicaid agencies.
Therefore, the Section 1557 regulations apply to the following physicians:
Physicians currently participating in, submitting claims to and receiving reimbursement from the Medicaid program. This does not include physicians who are enrolled only as an Ordering/Prescribing/Referring/Attending (OPRA) Medicaid provider for the purposes of writing or ordering prescriptions for Medicaid beneficiaries and who receive no reimbursement from the Medicaid program.
Physicians who receive incentive payments from the Medicare or Medicaid EHR incentive program on or after July 18, 2016 (the effective date of the regulations).
Physicians who receive other forms of federal financial assistance, including grants or participation in other federally funded programs. If you think this category applies to your practice, please call NYSPA Central Office for further guidance.
If your practice does not fall in any of the three above categories, you are not required to comply with the Section 1557 nondiscrimination provisions at this time. Again, please note that the Section 1557 regulations do not apply to physicians who receive payments under Medicare Part B only.
Under the rule, enrollment as a participating physician in a commercial health insurance plan that is subject to the 1557 rule (i.e., Medicaid managed care, Medicare managed care or an ACA exchange plan) does NOT in and of itself require compliance with Section 1557 on the part of the physician. However, the new rule does mandate that such health plans comply with Section 1557 and in turn requires those health plans to require all physicians participating in such plans to comply with the Section 1557 rules. Thus, participating physicians in a Medicare or Medicaid managed care plan or in an ACA exchange plan will likely be required to comply with Section 1557 as a contractual obligation of the health plan. Finally, under the Rule, once physicians are subject to Section 1557 for any part of their practice (e.g., because they are enrolled in a Medicare managed care plan as a participating physician), the new Rule (and all its requirements) applies to their entire practice.
HOW CAN I COMPLY WITH SECTION 1557?
Notice of Nondiscrimination – no later than October 16, 2016, all covered entities must post a Notice of Nondiscrimination in their practice location. As long as the notice contains all required information, the exact size and location of the notice may be determined at the discretion of the provider. In addition, the notice may be combined with other public notices mandated by law.
This Notice must include the following:
Your medical practice does not discriminate on the basis of race, color, national origin, age, disability or sex
Your medical practice does not exclude people or treat them differently because of race, color, national origin, age, disability or sex
Your medical practice will provide free aids and services to people with disabilities, including qualified sign language interpreters and written information in other formats
Your medical practice will provide free language services to people whose primary language is not English, including qualified interpreters and information written in other languages
SAMPLE NOTICE OF NONDISCRIMINATION FOR MEDICAL PRACTICE WITH FEWER THAN 15 EMPLOYEES.Click here to download.
SAMPLE NOTICE OF NONDISCRIMINATION FOR MEDICAL PRACTICE WITH 15 OR MORE EMPLOYEES.Click here to download.
These sample Notices may be edited to add your practice name and contact information and then printed for your use.
2. 15 Taglines – no later than October 16, 2016, all covered entities must also post "taglines" in at least the top 15 languages spoken in the State by individuals with limited English proficiency. The term tagline means "short statements written in non-English languages that indicate the availability of language assistance free of charge."
Click here to view sample Language Assistance Services taglines in 15 languages spoken in New York State. This document may be downloaded and customized by inserting in each tagline the telephone number of an interpreting service that physicians have hired to provide translation services to their patients when necessary.
3. Practice Website - if you maintain a website for your medical practice you must also post your Notice of Nondiscrimination and 15 Taglines on your website. A link to these two documents must be posted in a prominent location on the homepage of your website.
GRIEVANCE PROCEDURES AND DESIGNATION OF RESPONSIBLE EMPLOYEE
Covered entities that employ 15 or more individuals are also required to: (i) adopt a grievance procedure for the prompt and equitable resolution of grievances alleging a violation of Section 1557 and (ii) designate at least one employee to coordinate efforts to comply with Section 1557, including investigation of any grievances. Covered entities with fewer than 15 employees are not required to comply with these provisions.
CONCLUSION AND ACTION ITEMS
In order to comply with the Section 1557 regulations, physicians must take the following steps no later than October 16, 2016:
Personalize the sample Notice of Nondiscrimination and post it in a prominent place in your office and on your practice website, if you maintain one.
Personalize the sample 15 Taglines and post it or display it in a prominent place in your office and on your practice website, if you maintain one.
The greatest burden at this time appears to be the requirement for physicians in private practice to furnish translation services, including sign language interpreters when needed. Please note, however, that this requirement is similar to requirements that have been in place under the Americans with Disabilities Act with respect to sign language interpreters.