Final rule includes Medicare Advantage providers

August 16, 2016 Washington — The U.S. Department of Health and Human Services Office for Civil Rights said Aug. 15 that it will not delay enforcement of the final rule issued under Section 1557 of the Affordable Care Act.

Sec. 1557 prohibits entities that receive federal financial assistance from discriminating on the basis of race, color, national origin, age, disability and sex. In health care, the final rule applies to recipients of certain funding from HHS. Compliance requirements include requiring covered entities to "provide meaningful access to individuals with limited English proficiency" as well as providing qualified interpreters and translators. 

In July, the Association requested an extension of the implementation deadlines, noting that while the ADA strongly supports nondiscrimination, it was concerned that the final rule "risks further limiting patient access to care." The Association also urged OCR to take into account the financial and other burdens that the rule will impose on small businesses. 

In OCR's response, Director Jocelyn Samuels told ADA President Carol Gomez Summerhays and Executive Director Kathleen T. O'Loughlin that because the effective date (July 18) was "set by operation of the final rule" OCR is not able to make exceptions. Ms. Samuels also said OCR had devoted "substantial resources" to the development of the estimate of the burdens and benefits posed by the regulation.

"We believe the estimates in our impact analyses are sound, and we are unaware of any data or other evidence that would undermine our conclusions. Thus, we decline your request to revise the analysis of the burdens and benefits of the regulation that we have conducted and published," wrote Ms. Samuels.

While Sec. 1557 does not apply to Medicare Part B, OCR did clarify that the final rule does apply to any provider who receives reimbursement for Medicare Part C, Medicare Advantage, regardless of whether the plan reimburses the dentist or the patient. 

"This approach is consistent with the application of longstanding federal civil rights laws, such as Title VI and Section 504," wrote Ms. Samuels. 

In conclusion Ms. Samuels thanked the Association for its commitment to "compliance with Section 1557" and "strong support of equal access to health care." 

For dental practices that receive certain federal financial assistance from HHS, the Sec. 1557 final rule will require that they post notices of nondiscrimination as well as taglines in the top 15 non-English languages spoken in the state indicating that free language assistance services are available. 

The compliance date for the notices is Oct. 16. The rest of the rule went into effect July 18.

The notices must be posted in the dental office, on the website and in any significant publications and communications. For smaller items, such as postcards and tri-fold brochures, the practice may use a shorter nondiscrimination statement and taglines in the state's top two non-English languages spoken. 

To minimize the administrative burden for member dentists who are covered entities, the ADA has prepared resources to aid in compliance with the rule, including an FAQ and checklist. Visit ADA.org/1557. There are also sample materials available on the OCR's website at www.hhs.gov/ocr. 

For more information, visit the OCR's website and search Section 1557. Read the Office for Civil Right’s response letter in full here.