Final Rule Focuses on Limited English Proficiency Accommodations

AAFP's Concern for Small Practices Overruled by HHS

October 19, 2016 01:43 pm News Staff

An HHS final rule that went into effect Oct. 17 will affect family physicians who provide health care services through Medicare and Medicaid. The rule, titled "Nondiscrimination in Health Programs and Activities," was published in the May 18 Federal Register(www.gpo.gov) and implements Section 1557 of the Patient Protection and Affordable Care Act.

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The AAFP strenuously objected to a provision on language assistance when the proposed rule was made public in September 2015.

"Because small practices already operate on such thin margins, the AAFP strongly believes that HHS must procure the necessary funding to address and offset the estimated $1,135 burden on small entities," said (then) AAFP Board Chair Robert Wergin, M.D., of Milford, Neb., in a letter(2 page PDF) to HHS Secretary Sylvia Burwell.

"We have significant concerns that primary care practices are already taking a financial loss for treating patients who require interpretive services," he added.

Ultimately, the agency finalized the rule with some softening of the language, but no clear solution for the unfunded aspects of the new policy.

The final rule sets forth requirements for physician practices and others regarding signage and language assistance for patients with limited English proficiency and individuals with disabilities. It also prohibits discrimination based on race, color, national origin, sex, age or disability.

Story Highlights
  • HHS overruled AAFP objections to a final rule that toughens requirements for physicians to accommodate patients with limited English proficiency.
  • Out of concern for small practices operating on thin margins, the AAFP had called for the elimination of a provision that is estimated to cost small practices $1,135 each year.
  • An Oct. 11 posting in Family Practice Management's Getting Paid blog discusses what's in the rule and how family physicians can stay in compliance.

The rule, which affects more than two-thirds of family physicians, applies to all health programs and activities that receive federal financial assistance.

Importantly, the rule does not apply to physicians whose practices receive federal money only from claims payments associated with Medicare Part B.

AAFP President John Meigs, M.D., of Centreville, Ala., told AAFP News that the release of the final rule did not mean discussion of the topic was over.

"We believe this is a tremendous administrative overreach on the part of HHS," said Meigs. "This will be a significant burden for small, solo and independent practices. This is potentially another nail in the coffin for these practices. In rural areas, the cost of complying with this rule could easily exceed the payment for the services provided. The Academy is continuing to work with a coalition of national players and other interested stakeholders to try and bring some reason to this issue.

"This rule certainly fails the 'common sense' test," he added.

Breaking It Down

So what does this mean today to a typical family medicine practice?

Unfortunately, many of those affected by the rule may feel a financial pinch.

Kent Moore, the AAFP's senior strategist for physician payment, addressed how physicians can best manage what's expected of them in Family Practice Management's Oct. 11 Getting Paid blog post.

First, Moore clarified who is affected by the rule.

"This rule applies to all health programs or activities that receive funding from or are administered by HHS and the health insurance marketplaces, as well as all plans offered by issuers that participate in those marketplaces," Moore wrote.

If physicians receive Medicaid payments or meaningful use incentive payments through either the Medicaid or Medicare Electronic Health Record Incentive program, the rule applies to them, he added.

Importantly, however, "If your practice's only source of federal funds is through Medicare Part B, then this rule does not apply to you," Moore wrote.

He also addressed the specific actions practices must take to ensure that patients with limited English proficiency have "meaningful access" to health care. To comply with the rule, practices must

  • post a notice of nondiscrimination in English and
  • post taglines indicating the availability of language assistance on all significant practice publications or communications.

Those taglines must appear in the top 15 languages -- as determined by HHS -- in the state where the practice does business and should also appear, along with the notice of nondiscrimination, on a practice's website.

Moore also suggested practices take a proactive approach to compliance by

  • developing a plan to address the needs of patients with limited English proficiency;
  • affiliating with a call center that offers language assistance for the translation of written documents, as well as translation in person or by telephone when reasonable; and
  • translating frequently used documents into the languages used most often by patients in the practice.

Enforcement of the final rule will fall to HHS' Office of Civil Rights (OCR).

Help From HHS

HHS has provided a number of documents to help physicians understand the final rule and what actions they need to take to comply.

For instance, a three-page summary(www.hhs.gov) addresses rule coverage, procedural requirements and enforcement procedures.

An FAQ document discusses the designation of the top 15 languages(www.hhs.gov) for each state and links to a table of those 15 languages by state.(www.hhs.gov)

Physicians can download a sample of the required tagline information(www.hhs.gov) and read a sample notice of nondiscrimination.(www.hhs.gov)

Training materials(www.hhs.gov) created by HHS and OCR can help get office staff onboard with compliance to Section 1557.

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