Compliance with the Affordable Care Act’s Nondiscrimination Mandate

When I network with healthcare practice owners, they sometimes ask me why they would need an attorney.  This is their typical situation: their practice is open and operating, they have a (yellowed, dust-collecting, outdated) privacy policy that they didn’t know needed regular updating, and they don’t perceive any other legal needs.  The Affordable Care Act’s nondiscrimination mandate is a fabulous example of the value that I add to those practices that hire me to watch their back.

What is it?

Section 1557 of the Affordable Care Act (ACA) contains a nondiscrimination mandate, which prohibits discrimination in federally-funded healthcare programs or activities.  This portion of the ACA took effect in 2010, but the Department of Health and Human Services, Office of Civil Rights recently implemented new mandatory compliance requirements.

To whom does it apply?

It applies to almost everyone rendering healthcare services or administering a health plan.

Technically, you’re required to comply if you’re a “covered entity” (which has a different meaning than it does for HIPAA!). For the purpose of Section 1557, you’re a covered entity if you receive any federal financial assistance from HHS – which may be something as innocuous as a Medicare payment.  And, even if you’re not a covered entity, it may still apply to you if you engage in conduct like sponsoring a group health insurance plan that accepts federal funds.  In that example, the plan will be subjected to the new requirements, although that nuance doesn’t change the requirement that you take action to ensure compliance.

If you still decide that you’re not covered by its requirements, be forewarned: if HHS investigates you for discrimination and determines you’re not a “covered entity,” it has specified that it will simply refer the case to another federal agency that does have the ability to penalize you for discrimination.

What does it require?

The regulations prohibit discrimination on the basis of race, sex, color, national origin, age, or disability in health programs and activities.  While it seems simple, discrimination on the basis of gender or disability are rampant (read a previous blog post about that here).

The new regulations, along with the law itself, require providers to take affirmative steps to stamp out discrimination in their practices.  For example, it requires that you both create and post a Notice of Nondiscrimination, as described by the regulations, in certain patient communications and in your practice’s physical location.  It also requires that providers amend their marketing materials, publications, and website (to name a few) to include a nondiscrimination statement.  Finally, depending upon the size of one’s practice, providers may be required to create formal grievance procedures to address discrimination complaints.

The law does not place substance above form. Your good intentions do not excuse your noncompliance with the law’s technical requirements.

The law does not place substance above form.  In other words, your good intentions do not excuse your noncompliance with the law’s technical requirements.  If you don’t currently have written policies in place addressing your interactions with transgender or limited-English proficient patients (or if those policies aren’t up-to-date with the most current legal requirements), you’re probably noncompliant with the law.

How to comply.

First, you should ask your attorney how these requirements apply to you and how you should implement them in your practice.  Your attorney will likely create an antidiscrimination policy, along with procedures that detail that policy’s implementation in your practice.

Second, carefully review all of the documents you receive from your attorney and ask for a plain language explanation of what’s required of you.  It’s crucial that you understand if and how these new regulations change how you’re expected to interact with patients.

Third, train your staff!  I offer fun and interactive (really!) trainings, usually over bagels and coffee in the morning, that explain how to implement new procedures in plain language, or that just provide a refresher course on how clinic staff and providers should be interacting with patients.  They’re a great opportunity for clinic staff to ask questions, raise concerns or complaints about existing clinic protocols, and to be reminded of the central role the ACA plays in refocusing clinics and healthcare on the all-important patient.  

***Election Disclaimer

If you think you can avoid compliance by waiting out President-elect Trump’s promise to repeal the ACA, you are playing with fire.  The ACA and its regulations are in full effect, and your failure to comply with these requirements now subjects you to significant risk.

This post is not a substitute for real legal counsel, so if you have questions, email me: erin@jackson-legal.com. Thanks for reading.

 

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