New ACA Rule: Burden or Irrelevant for Psychologists?
November 6, 2016
Federal antidiscrimination rules promulgated by the Health and Human Services Office of Civil Rights that require many providers of health-related services to post notices in 15 languages that translation services will be provided free of charge to those who have trouble speaking and understanding English probably does not apply to most practicing psychologists.
Emphasis on “probably.”
At the request of The National Psychologist, Gordon Herz, Ph.D., a clinical psychologist in Madison, Wisc., reviewed provisions of the rules, which expand the nondiscrimination requirements of Section 1557 of the Affordable Care Act (ACA).
In a disclaimer, Herz noted that interpreting federal regulations is not an area in which he considers himself having great expertise but added that he has “an – admittedly odd – interest in getting into the depths of Medicare and other health care policy at times.”
That said, Herz said the requirement for any provider or insurance issuer receiving federal funds to post the notices, which were to be in place by Oct. 16, clearly does not apply if a provider only receives federal money indirectly through serving patients utilizing Medicare Part B benefits. Those benefits are specifically exempted.
The same is probably true for providers serving patients who have federally subsidized insurance through ACA exchanges, again with emphasis on the “probably.”
“Early on I was coming to the conclusion this might not apply to psychologists and if it did, the mandates would not be overly burdensome. I’m less sure of that now,” Herz said. “I thought and wish I could say this is relatively simple, but of course it’s federal regulations we’re talking about.”
Several indications lead Herz to believe the requirements do not apply to most psychologists. For example, most clauses of the rules are directed at “physicians,” a class the federal government so far has not interpreted to include psychologists. Also, he said, many of the rules concerning nondiscrimination for those not proficient in English are “encouraged” rather than mandated. In other words, compliance would be voluntary rather than enforced.
Larger firms with 15 or more mental health service providers likely are subject to the rules, including the need to designate a compliance coordinator to oversee services to those with limited proficiency in English. Herz said the rule includes an estimate that 4,987 “outpatient mental health and substance abuse centers” will be affected.
Requirements for smaller businesses would be less stringent, requiring posting only in the two languages other than English most common in the specific area.
In summary, Herz said, “I remain uncertain and information is mixed about whether the rule applies to psychologists or not.”
His recommendation: “Psychologists should request definitive written guidance from their state and other professional organizations about whether the rule applies to them.”
Herz said he would particularly like to have advice posted on the American Psychological Association (APA) Practice Organization’s website. “They’d be a superb resource.”
While the rules were under consideration, the APA submitted written comments strongly supporting applying them to insurers.
The comments noted that entities receiving federal funds “would include health insurance issuers in federal facilitated and state marketplaces, managed care providers, and health insurers acting as 3rd party administrators of self-insurance health plans.”
One comment specifically addressed the language issue: “APA supports the provision that ensures that meaningful information for applicants and enrollees is accessible to all persons, including those with limited English proficiency, through comprehensive interpretive services. Not being able to fully understand health materials or communicate with providers is a significant barrier in obtaining health services.”
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