Heads Up! Affirmative Compliance Action Needed by January 23, 2018!
Health Law Alert 01/05/18 Sarah E. Coyne, Jon R. Kammerzelt, Christopher M. Guthrie
Happy New Year, Wisconsin health care providers! If you were having trouble waking up from your post-holiday nap, here is a little bit of shocking news that should help: In all likelihood you are obligated to, among other things, submit a letter of assurance to the Wisconsin Department of Health Services (DHS) and develop a specific civil rights compliance plan in the VERY NEAR FUTURE. But, never fear, your favorite lawyers are here to help you. Here is a quick overview that will get you up to speed:
Who Needs to Care About This? You Do!
Health care providers who have a payment arrangement with Medicaid or otherwise get federal funding through DHS (Hello, practically all of you!) or the Department of Children & Families (DCF) or the Department of Workforce Development (DWD) care about reading the rest of this alert!
Why Do You Care? Because it's the LAW.
Specifically, the federal civil rights laws specify that agencies who receive federal financial funding must assure nondiscrimination in service delivery. DHS, DCF, and DWD released the specifics on this for the years 2018 – 2021 in November, in this letter. Three things about the letter: (1) it is very well written; (2) it seems to have gotten buried in piles of paper or over-stuffed inboxes on many desks and computers across Wisconsin; and (3) they are "PLEASED" to announce that we have a lot of work to do? (Note to regulators: Just kidding about that last one.)
When Do You Care? January 23 . . . OF THIS YEAR!
But that part is easy. You also care on March 2, 2018 (or at least most of you do) and thereafter through at least 2021.
What Do You Have To Do By January 23? Complete and Submit a Letter of Assurance To DHS.
You must submit a letter of assurance to DHS that you are compliant with federal civil rights laws. The law specifically says that for ongoing relationships with DHS, the letter should be submitted "fifteen working days after January 1, 2018" so you might want to check our math—we are just humble lawyers, after all.
Luckily for you, DHS, DCF, and DWD put out a super helpful set of templates and instructions, which includes a template letter of assurance at page 17 as well as some forms that are attached as Appendices, A,B, and C. (Hopefully this makes up for our semi-snarky earlier comment—we love you, regulators!) Letters should be submitted to [email protected].
What Do (Some of You) Have To Do By March 2? Create a Civil Rights Compliance Plan.
Those of you that employ 50 or more employees and receive more than $50,000 of federal financial money (including Medicaid reimbursement) must complete a Civil Rights Compliance Plan (Plan), which you need to keep and follow, and provide to DHS (or DWD or DCF) upon request. This Plan is to be complete 60 calendar days after January 1—again, our lawyerly math says March 2. A template Plan is available in the super helpful document at pages 27-47. (Note: This is 20 pages. It is a long plan. Try not to put it off until the end of February—also this is not a leap year). The Plan should cover compliance through December 31, 2021.
What About Your Subcontractors? They Must Comply, Too!
You have to assure DHS that your subcontractors (to whom the federal funds flow) also comply with these requirements, including submitting their own letter of assurance to you or to DHS. We'll be honest here, the logistics of this one seem a little fuzzy. A list of example "subrecipients" is on page 15 of the super helpful document. We do know the following:
- A subrecipient is a non-federal entity that receives federal funds through your entity for helping you provide the services.
- Some of your subrecipients might themselves have submitted the letters on their own behalf. If they did, you are off the hook. If they did not, you are supposed to collect letters of assurance from them and keep them around in case DHS, DWD, or DCF requests them.
- There is some discussion of your obligations regarding subrecipients at pages 5 and 10 of the super helpful document.
What Else Do You Have To Do? Nothing. Just Kidding, There is Unfortunately More You Must Do.
Below is not an exhaustive list (see that lawyerly move we just made?) but some of the other requirements—which must be set forth in your Plan—also specifically include:
- Provide language assistance services for meaningful access to health care.
- Implement ways to communicate effectively with those with disabilities through the use of auxiliary aids or services.
- Ensure that any newly constructed or remodeled facilities are physically accessible to all.
- Have a discrimination complaint process in place.
- Post required nondiscrimination notices and statements.
Do These Requirements Replace My Other Compliance Obligations? Of Course Not!
For example, contractors with the state agencies must follow Wisconsin's Contract Compliance Law which sets forth separate compliance obligations, and there is no shortage of other federal and state compliance obligations, which all of you know and love.
If you have any questions about these or other compliance obligations, contact Sarah E. Coyne at (608) 283-2435/[email protected], Jon R. Kammerzelt at 608) 283-2438/[email protected], Christopher M. Guthrie at (608) 283-2472/[email protected], or your Quarles & Brady attorney.