Final Rule Published That Affects Healthcare Providers

On May 13, 2016, The Department of Health & Human Services (HHS) published the Final Rule aimed at eliminating discrimination and the inequities in the provision of healthcare services.  These new Regulations, which implement Section 1557 of the Affordable Care Act (ACA), become effective July 18, 2016 and ambulance providers will need to prepare now to be in compliance in time.

The provisions of Section 1557 build off of existing Title VII and other discrimination laws that extend protections to previously underserved or under-represented groups of people with regard to healthcare.  The new Regulations prohibit discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.  In addition, the Regulations provide discrimination protections on the basis of pregnancy, gender identity, and sex stereotyping.  The Final Rule also requires that “covered entities” make available assistance for individuals with Limited English Proficiency (LEP) and those with disabilities, including communications related disabilities.

Ambulance Providers as “Covered Entities”

Section 1557 defines a “covered entity” as: (1) an entity that operates a health program or activity, any part of which receives Federal financial assistance; or (2) an entity established under Title I of the ACA that administers a health program or activity.  This includes any healthcare provider that receives funds from Medicare or Medicaid.  Most ambulance providers bill and receive money from both of these federally funded programs and will be required to meet the provisions of the new Regulations.

Coming Into Compliance from a Procedural Perspective

The Final Rule requires that covered entities with 15 or more employees must have a Compliance Coordinator and a Grievance Procedure.  The Compliance Coordinator is to monitor and coordinate compliance with the provisions of the Final Rule.  The Grievance Procedure has to provide the appropriate due process standards that would allow for the prompt and equitable resolution of complaints concerning actions prohibited by Section 1557.  HHS has included a sample Grievance Procedure in Appendix C to Part 92—Sample Section 1557 of the Affordable Care Act Grievance Procedure  to assist covered entities in meeting this requirement. Click here to download.

In addition, the Final Rule requires that all covered entities post notices assuring patients that the covered entity does not discriminate on the basis of race, color, national origin, sex, age, or disability.  In addition, covered entities must post a notice regarding the accessibility requirements for individuals with disabilities.  Again, HHS has included a sample notice that covered entities can utilize to meet the notice requirements.

As mobile healthcare providers, we are often not considered when regulators are creating new healthcare rules, as seems to be the case with these new regulations.  Ambulance services can easily meet the Compliance Coordinator and Grievance Procedure requirements of the Final Rule.  However, more challenging are the notice requirements.  Ambulance patients do not come to our facilities to receive the services we provide, we go to them.  The American Ambulance Association is seeking more clarification from the Office of Civil Rights (OCR) as to how we can practically meet some of the new notice requirements.  In the meantime, we suggest that services post the required notices on their company website and provide notice to patients in the same way they do with the HIPAA Notice of Privacy Practices.

Coming Into Compliance from a Practical Perspective

Ambulance providers will need to educate all members of their staff about the obligations that they have to their patients under the Final Rule.  While we believe that the care givers in our industry always treat the patients they encounter with dignity, respect, and top notch medical care, the Final Rule highlights our obligation to notify patients of our commitment to non-discrimination, as well as, providing notice and access to auxiliary aides and services to assist individuals with Limited English Proficiency (LEP) and disabilities.

The Final Rule requires the notices that covered entities provide to patients must be translated into the 15 most commonly spoken languages in the state that they provide service.  These notices must alert patients of the non-discrimination statement and that auxiliary aides are available to them.  To ease the financial burden on covered entities, HHS has provided a link to sample notices for both requirements in 64 different languages.  The Final Rule also suggests that covered entities create Language Access Plans like the 12 Element Strategic Language Access Plan that CMS has published.  The Final Rule suggests this but does not require it.

Many ambulance providers already utilize telephone interpreter services.  These services can be accessed by both dispatch centers and field providers and generally identify and provide interpreter services in over one hundred languages.   These services can typically identify the language and have an interpreter on the phone within 30 seconds of initiating the call.  This type of service can be an incredibly effective way to meet this requirement under the Final Rule.  The AAA has reached out to many translation vendor services in an effort to negotiate discounted rates for our members.

Health Plan Provisions of the Final Rule

Finally, the Final Rule also includes some health plans as a “covered entities” and extends the same discrimination protections, including the procedural and notice requirements.  Employers who, as plan sponsors, receive federal dollars to help fund their employer sponsored health benefits must comply with these non-discrimination Regulations.

These protections include that a covered entity cannot: deny, cancel, limit, or refuse to issue or renew a health-related insurance policy or other health-related coverage; deny or limit coverage of a claim, or impose additional cost sharing or other limitations or restrictions; or employ marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability.

The Final Rule does not require these plans to cover any particular benefit or service or prohibit issuers from determining whether a particular health service is medically necessary, but a covered entity cannot have a coverage policy that operates in a discriminatory manner.  The Final Rule also prohibits a covered entity’s plan from denying or limiting coverage, denying or limiting a claim, or imposing additional cost sharing or other limitations, on any health services that are ordinarily or exclusively available to individuals of one gender, based on the fact that an individual’s sex assigned at birth, gender identity, or recorded gender is different than the one to which the health care services are ordinarily or exclusively available.

Bottom line, Employers who, as plan sponsors, receive federal dollars to help fund their employer sponsored health benefits cannot discriminate against any employee or plan participant on the basis of one of the protected categories listed in the ACA Section 1557 Final Rule.  Additionally, these plans must also comply with the same procedural protections and notices to plan participants as they do to the patients that they serve.

Conclusion

The American Ambulance Association is seeking additional guidance from OCR regarding how our industry can meet all of the requirements under these new rules.  Our goal is to ensure that our members will be in compliance by the July deadline. However, members need to act now to prepare for July 18th as we may not get any feedback or guidance from OCR until after the deadline.  We will publish further advisories as more information becomes available.

 

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Scott Moore

Scott A. Moore, Esq. has been in the emergency medical services field for over 26 years. Scott has held various executive positions at several ambulance services in Massachusetts. Scott is a licensed attorney, specializing in Human Resource, employment and labor law, employee benefits, and corporate compliance matters. Scott has a certification as a Professional in Human Resources (PHR) and was the Co-Chair of the Education Committee for the American Ambulance Association (AAA) for several years. In addition, Scott is a Site Reviewer for the Commission on the Accreditation of Ambulance Services (CAAS). Scott earned his Bachelor’s Degree in Psychology from Salem State College and his Juris Doctor from Suffolk University Law School. Scott maintains his EMT and still works actively in the field as a call-firefighter/EMT in his hometown. Scott is a member of the American Bar Association, the Massachusetts Bar Association, the Society for Human Resource Management, and the Northeast Human Resource Association.

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