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Clock Ticking on Next Regulatory Tsunami for Physicians

By Fraser Cobbe

Orange and Seminole County Medical Societies

October 19th is the deadline for hospitals, physicians, and other covered entities to come into compliance with the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) Final Rule implementing Section 1557 of the Affordable Care Act (ACA). Section 1557 expands upon existing protections against discrimination based on race, color, national origin, sex, age or disability in health programs with a new wave of regulation and potential liability for all covered entities.

According the HHS the goal of Section 1557 of the ACA is to "advance equity and reduce health disparities by protecting some of the populations that have been most vulnerable to discrimination in the health care context".

In practice, Section 1557 is a significant expansion of regulations and an enormous unfunded mandate that will hit independent physicians extremely hard.

The Orange County Medical Society recommends that physicians take immediate action to review the final rules and determine the steps they need to take to become compliant. Failure to do so will expose the practice to potential complaints of discrimination or civil action filed against them by the patients they are attempting to serve.

Some of the bureaucratic highlights of the new regulations include:

* Covered entities must post in their business locations notices of nondiscrimination and taglines in at least the top 15 non-English languages spoken in the State where the entity does business. For Florida that list of languages ranges from Spanish to Thai and includes Tagalog and Gujarati. OCR has provided samples for entities to use.

* "Small-sized significant communications" from the entity are required to include the nondiscrimination statement and taglines in at least the top two non-English languages in the State. For Florida that would be Spanish and French Creole.

* Covered entities are encouraged to develop and implement a language access plan.

* Entities with 15 or more employees must have a formal grievance procedure and a compliance coordinator responsible for handling compliance and complaints.

* All programs and activities provided through electronic and information technology must be accessible with appropriate auxiliary aids for individuals with disabilities.

* To monitor compliance, OCR will require covered entities to keep records and submit compliance reports when necessary.

* Entities must also complete and return an Assurance of Compliance form to the OCR stating they understand their obligations under the new rules.

Entities should note that the list above is not an exhaustive list and should refer to the entire rule for full compliance.

While the new regulations are not a departure from the intent of existing nondiscrimination policies, the burden for compliance is significantly ratcheted up.

Given the nature of the services rendered by physicians, the "four-factor analysis" that OCR recommends conducting to determine if a service is significant enough to be impacted by the regulations will require careful review and consideration.

As a society we must stand in support of all efforts to eliminate discrimination wherever it exists. However, we cannot be blind to the significant cost and impact the regulatory burden is having on the delivery of health care in our nation.

All of the guidance from the Office of Civil Rights has been posted on their website here.

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