Affordable Care Act non-discrimination rule


Boca Raton, FL
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Are doctors' offices subject to the Affordable Care Act's new non-discrimination policy (the one that requires you to distribute a notice of nodiscrimination with taglines in least 15 languages to all your patients)?

I have heard from experts that it applies to all doctors' offices that accept Medicare. But HHS does state that “You may not be such a Covered Entity if you are a health care professional who accepts only Medicare Part B insurance payment." HHS also states, elsewhere, that the rule applies to "any health program or activity, any part of which receives funding from HHS (such as hospitals that accept Medicare or doctors who accept Medicaid)." Why only doctors who accept Medicaid? Why not doctors who accept Medicare?

If anyone help us wade through the confusing language, I would appreciate it!
I assume you're referring to Section 1557? The Final Rule is 99 pages long and I'm only mid-way through reading it, but I'll try to help you.

The definition for Federal financial assistance states "contract of insurance." It was determined that, because of the way Medicare Part B pays providers, Part B does not constitute a contract of insurance. "While we agree that all parts of the Medicare program are a health program or activity, not all operations in the Medicare program constitute Federal financial assistance;... Medicare Part B is excluded from the definition of Federal financial assistance under this rule..."

"The particular types of facilities that must comply are:

• All health programs and activities that receive Federal financial assistance (FFA) from HHS.

o Examples of types of covered entities: hospitals, health clinics, physicians’ practices, community health centers, nursing homes, rehabilitation centers, health insurance issuers, and State Medicaid agencies.

o Federal financial assistance includes grants, property, Medicaid, Medicare Parts A, C and D payments, and tax credits and cost-sharing subsidies under Title I of the ACA. (Medicare Part B is not included.)

• All health programs and activities administered by entities created under Title I of the ACA (e.g., State-based and Federally-facilitated Health Insurance Marketplaces).

• All health programs and activities administered by HHS (i.e ., Medicare Program, Federally-facilitated Marketplaces).

• Where an entity is principally engaged in health services or health coverage, ALL of the entity’s operations are considered part of the health program or activity, and must be in compliance with Section 1557 (e.g., a hospital’s medical departments, as well as its cafeteria and gift shop)."

In other words, if an entity's chief function is providing health services, and that entity provides such services, those services are considered part of the health program/activity. If the health program/activity receives Federal financial assistance and the entity provides health services, the payment that the entity would receive would qualify them as a "covered entity" by definition.

Next, just to clarify, Medicare is an insurance program; Medicaid is an assistance program. Medicare has Parts A, B, C, & D; each covers specific services/items. Medicaid, on the other hand, is all-in-one, so to speak. There are no distinctions between hospital vs professional vs drug coverage. This is why Medicaid is all inclusive and Medicare is not.
It depends. If the provider's office is using any type of federal financial assistance, then the office would be a covered entity. There should also be the consideration of " 'meaningful use' payments under the Medicare and Medicaid Electronic Health Records Incentive Program."

It would be in the best interest of the practice to have an attorney come in and review the financials, etc if there is some uncertainty.