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October 7, 2016
Sharon Hall | Vice President, Risk Specialist
For the last several months, individuals responsible for healthcare compliance have been receiving information about the new rules under the ACA. At this point, most organizations should be or are on the way to modifying their practices to comply. While most of the requirements took effect on July 18th, posting of patient notices becomes effective on October 16th, 2016. Also, notice of compliance must be filed with the Office of Civil Rights (OCR).
Consider the following risk management situations that may be avoided with ACA compliance:
The ACA‘s purpose is to advance equity and reduce health disparities by protecting vulnerable populations. If you are a provider of healthcare and receive funding from, or are involved in programs and activities administered by the Department of Health and Human Services (HHS), you are obligated to comply. Indian Health Service programs are included, but physicians who only receive reimbursement under Medicare Part B are excluded from compliance. The final rule prohibits discrimination under section 1557 of the ACA based on race, color, national origin, sex, age, or disability. The definition of sex includes gender identity and sex stereotyping. Federal protection is also extended to transgender patients. The ACA rules are consistent with the Americans with Disability Act (ADA) and Section 504 of the Rehabilitation Act of 1973.
While many organizations have not needed to create new policies and procedures, most have found it necessary to modify existing practices, update written documents, and train staff. It is of utmost importance to incorporate the new discrimination requirements in all areas of the organization. Be sure to review your communications, including websites, social media, and promotional materials. While training is often consistently carried through for professional staff, other employees such as those working in registration areas, billing, imaging and physician offices must also be aware of the rules and the organizational changes.
So what does this mean for the majority of healthcare providers? Operational policies, procedures, and documents available for patient distribution need to be reviewed to address:
What happens if an organization is not compliant? The price is high. HHS may suspend, terminate, or refuse to continue further funding. In addition, individuals may file individual or class actions claims in federal court. Because the compliance responsibility follows the federal financial assistance, is it possible that a hospital or clinic may be found liable for an individual practitioner who does not need to comply, e.g. accepts only Medicare B. Therefore, provider compliance with antidiscrimination should be addressed in employment agreements and medical staff bylaws. Insurance coverage may be available for defense and/or indemnity payments depending upon the policy language and how the complaint is filed. Look to your employment practices policies to check for third party coverage, and your directors and officers policies for regulatory defense and coverage for fines and penalties. Most insurance policies require a substantial retention and co-insurance, unless a separate regulatory policy is purchased.
Do you still have some work to do? The HHS website offers a number of sample documents to assist you, and there are other businesses offering tool kits as well. Links to the HHS website are provided below:
Section 1557 Patient Protection and Affordable Care Act and Final Rule – http://www.hhs.gov/civil-rights/for-individuals/section-1557
Training materials – http://www.hhs.gov/civil-rights/for-providers/training/index.html
Sample Grievance Procedure – http://www.hhs.gov/civil-rights/for-providers/clearance-medicare-providers/example-grievance-procedure/
Sample Notices, Statement of Nondiscrimination and Taglines and Translated Resources – http://www.hhs.gov/civil-rights/for-individuals/section-1557/translated-resources/
FAQ’s and Language Access Requirements – http://www.hhs.gov/civil-rights/for-individuals/section-1557/1557faqs/top15-languages/index.html and http://www.hhs.gov/sites/default/files/resources-for-covered-entities-top-15-languages-list.pdf
Auxiliary Aids – https://www.ada.gov/reachingout/t3regl2.html
Assurance of Compliance form – http://www.hhs.gov/sites/default/files/hhs-690.pdf
The above information is advisory in nature and should not be considered legal advice. It is designed to assist you in your risk management activities and is not intended to be exclusively relied upon or used as a substitute for the healthcare provider’s professional loss control and compliance program.
The views and opinions expressed within are those of the author(s) and do not necessarily reflect the official policy or position of Parker, Smith & Feek. While every effort has been taken in compiling this information to ensure that its contents are totally accurate, neither the publisher nor the author can accept liability for any inaccuracies or changed circumstances of any information herein or for the consequences of any reliance placed upon it.