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Home Health & Hospice Week

Compliance:

Complete These 9 Steps To Prep For Nondiscrimination Protections

Published on Fri Jun 14, 2024

Tip: Update compliance checklists to ensure your agency meets deadlines.

With the new Nondiscrimination in Health Programs and Activities final rule taking effect on July 5, home health and hospice agencies have no time to waste when it comes to preparation. Use this guide to get a jumpstart on complying with key provisions of the rule and their staggered implementation dates.

“Covered entities will want to … review Section 1557 requirements and responsibilities, and immediately start to take steps to ensure compliance by the applicable effective dates,” urges attorney Rory Kane Akers with brokerage firm Lockton in online analysis of the final rule.

Recap: The Centers for Medicare & Medicaid Services published the nondiscrimination requirements of section 1557 of the Affordable Care Act (ACA), known as the Nondiscrimination in Health Programs and Activities Final Rule, in the May 6 Federal Register. The rule makes it unlawful for healthcare providers that receive federal funding to refuse to treat — or to otherwise discriminate against — an individual on the basis of: race, color, national origin (including limited English proficiency and primary language), sex (including sex stereotypes; sex characteristics including intersex traits; pregnancy or related conditions; sexual orientation; and gender identity), age, or disability.

This applies to in-person and telehealth care, and impacts a variety of healthcare providers, including HHAs and hospices, as well as payers.

Timing: The final rule is effective July 5, but it provides for staggered implementation of its various provisions. See the table in the Rule at § 92.1(b) or HHS’ FAQs located here.

Read on for key provisions and completion dates:

To be completed within 120 days of the effective date, or Nov. 2, if you employ 15 or more persons

1. Prepare a Notice of Nondiscrimination. The notice should include nondiscrimination requirements and information on how to file a discrimination complaint. See § 92.10 of the rule for the information required in the notice and how it may tie in with the Notice of Availability below.

Warning: “While many organizations already have an existing nondiscrimination policy, they likely will need to be updated to account for the requirements under the 2024 rule,” caution attorneys Timothy Fry, Megan Italiano, and Jonathan Wrobel with law firm McGuireWoods.

2. Designate and define the responsibilities of a Section 1557 Coordinator. Coordinator duties include receiving, reviewing, and processing grievances, coordinating recordkeeping requirements, coordination and implementation of nondiscrimination-related policies and procedures, staff training of same, etc.

CMS lists coordinator duties and requirements at § 92.7.

To be completed within 300 days of the effective date or May 1, 2025

3. Identify and mitigate the risk of discrimination in the use of patient care decision support tools in clinical care and in health programs and activities.

The rule clarifies that nondiscrimination applies to artificial intelligence (AI), clinical algorithms, predictive analytics, and other decision support tools. See §92.210 for specifics.

“As best practice… Covered Entities will want to consider establishing written policies and procedures governing how patient care decision support tools will be used in decision-making, including adopting governance measures, creating mechanisms to monitor any potential impacts, developing ways to address complaints, and training staff on the proper use of these tools in decision-making,” recommends attorney Pat Ouellette with law firm Mintz in online analysis of the rule.

To be completed within one year of the effective date or July 5, 2025.

4. Provide meaningful communication and access for individuals with limited English proficiency (LEP), including companions with LEP. This may include:

  • language assistance services that are free of charge, accurate and timely, and protect the privacy and the independent decision-making ability of the individual with LEP, or
  • qualified interpreters and translation services.

See § 92.201 for details and terms for how CMS will evaluate compliance.

5. Provide effective communication and accessibility, including the requirement to make reasonable modifications, for individuals with disabilities and any companions with disabilities.

This includes auxiliary aids and services provided free of charge, in accessible formats, in a timely manner, and in such a way as to protect the privacy and the independence of the disabled individual(s). Details are in sections § 92.202 - § 92.205.

6. Adopt and implement written nondiscrimination policies and procedures.

For example:

  • the aforementioned nondiscrimination policy;
  • grievance process and record-keeping procedures;
  • language access procedures;
  • effective communication procedures including the names of any qualified interpreters on staff and procedures on how to access auxiliary aids and services; and
  • procedures for reasonable modifications for individuals with disabilities.

To ensure compliance the policies and procedures must include an effective date and be reasonably designed, taking into account your size, complexity, and the type of health programs or activities you provide. See § 92.8 for a listing of all civil rights policies and procedures required.

Tip: HHS provides technical material and examples to help develop these policies and procedures here.

7. Prepare and provide a Notice of Availability for language assistance. This includes electronic and written translated documents and oral interpretation, and auxiliary aids and services to individuals with impaired sensory, manual, or speaking skills, where necessary and at no cost to the patient.

Agencies must provide the notice:

  • Annually and upon request,
  • Displayed conspicuously on the entity’s website, and
  • Posted in clear and prominent locations in the entities physical location(s), if applicable.

CMS defines all requirements in § 92.11.

Know this: The notice must be in English and the 15 most common languages spoken by individuals with LEP in the relevant state(s) in which the entity operates.

In addition, providers must include the notice in certain written and electronic communications (such as nondiscrimi­nation and privacy practice notices, application and intake forms, patient handbooks, denial notices, MPOAs and living will instructions/consent forms, discharge papers, and more).

Tip: HHS provides samples of this notice, the Nondiscrimi­nation Notice and translated samples of each at www.hhs.gov/civil-rights/for-providers/resources-covered-entities/index.html

8. Comply with the clarified definition/requirements of telehealth. This includes offering covered telehealth to individuals with LEP, and individuals with disabilities. See section § 92.4 of the rule for the full telehealth definition.

To be completed no later than 30 days after implemen­tation of policies/procedures and no later than one year after the effective date.

9. Train relevant employees (both permanent and temporary staff) on the above policies and procedures as required, and as necessary and appropriate for the employees to carry out their functions consistent with the requirements of the rule. See § 92.9 for training and documentation requirements of employees’ completion of training.

Plus: The rule adopts new procedures for entities wishing to invoke federal religious freedom and conscience protections. For more on those procedures, see § 92.302.

Stay tuned: Legal challenges have already been filed, with more likely to come. “As with past iterations of these rules, it is possible, and probably likely, there will be judicial challenges to the rule,” Lockton’s Kane Akers notes.

Note: See all the provisions of the final rule here and review the fact sheet here.

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