Health Care in a Context of Civil Rights (1981)

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APPENDIX D HILL-BURTON COMMUNITY SERVICE REGULATIONS 29380 Faaarml RsjgjaUr / Vol. 44. No. 88 / Friday. May IB. 1979 / Rules and Regulation! AMhorilr See. 21J. lilt. 1602(6). Public H«sllh SarvtM Acl u .m«nd«d 56 Sut em 66 SUt 2240. 66 SUt 1298: U U.S.C. 116. MOm-4. 300o-I(8). IU4J01 «*-slcaa»r». The provisions of thl6 nibput apply to any recipient of Federal esslslance under Title Vl or XVl of tlw Public Health Service Act that ha. given 6D aasurance that it would mske the facility or portion thereof misled available to all penons resldlng (and. in the caae of Title XVl mined applicant* employed), la the territorial ana H , aervea. Thla aaeurance la referred to in thla subpart aa the "community aervice aMuranoe." |U4.60t Aa uaed in thla subpart— "Act" means the Public Health Service Act aa amended. "Facility" meana the an entity that received asslstance under Title Vl or Title XVl of the Act and provided a community aervice aasurano*. Tlacal year/* means facility'! Bacml year. "Secretary" means the Secretary of Health. Education, and Welfare or bla delegate*. "Service area" means the geographic area dealgnated aa the area aerved by the facility in the most recent State plan approved by the Secretary under Tide V1. except mat at the request of the facility, the Secretary may dealgnate a different area propoaed by the facility when he determines that a different area la appropriate based on the criteria in 42 CFR 53.1(d). "Stele agency" means the agency of a state fully or conditionally deaignatad by the Secretary aa the State health planning and development agency of the State under aection 1521 of the Act 1124.103 ProvMonoleantM*. (a) Genera/. (1) ln order to comply with its community aervice aasurance, a facility shall make the aervlcea provided in the facility or portion thereof constructed, modernized, or converted with Federal aaalstance under Title Vl or XVl of the Act available to all persons rending (and. in the caae of facilities aaalsted under Title XVl of the Act employed) in the faclllty'e aervice area without discrimination on the ground of race. color, national origin, creed, or any other ground unrelated to an individual's need for the aervice or the availability of the needed service in the facility. Subject to paragraph (b) (concerning emergency services) e facility may deny services to persons who are unable to pey for them unless those persons are required to be provided uncompensated services under the provisions of Subpart P. (2) A penon la reetdlng in the facility's service area for purposes of thla section if the person: (i) la living in the service area with the intention to remain there permanently or for an indefinite period: (U) |aI living in the aerrlc* araei for purposes of employment or (111) la living with a family member who resides in the aerrica area. (b) Emergency serrier*. (1) A facility may not deny emergency services to any person who resides (or. in the case of Ucilitiea aasisted under Title XVI of the Act la employed) in the facility's service area on the ground that the person la unable to pay for those aervioea. (2) A facility may discharge a person that baa received emergency aervlcea, or may transfer the person to another facility able to provide necessary aervlcea, when the appropriate medical personnel determine that discharge or transfer will not subject the person to a substantial risk of deterioration in medical condition. (c) Third party payor program*. (1) The facility shall make arrangements, if eligible to do so. for reimbursement for services with: (1) Thoea principal State and loca' governmental third-party payora that provide reimbursement for services that la not leu than the actual costs, aa determined in accordance with accepted cost accounting principles; and (11) Federal governmental third-party programa, such aa medicare and medicaid. (2) The facility ahall take any necessary steps to insure that admlaalon to and aervlcea of the facility are available to beneficiariea of the governmental programa specified in aubparagraph (1) of thla paragraph without discrimination or preference because they are beneficiaries of those programa. (d) Exclusionary admimiom policies. A facility is out of compliance with its community service aasurance if it uaea an admission policy that hae the effect of excluding peraona on a ground other than those permitted under paragraph (a) of this section. lllustrative application* of this requirement are described in the following paragraphs: (1) A facility h«s a policy or practice of admitting only those patlenta who an referred by physicians with ataff privileges at the facility. lI thla policy or practice haa the effect of excluding peraons who reside (or for Title XVl facilities, are employed) in the community from the facility because they do not have a private family doctor with staff privileges at the facility, the facility would not be in compliance with its aasurance. The facility la not required to abollah Hs ataff physician admissions policy aa a usual method for admission. However, to be in compliance with its community aervice aasurance it must make alternative arrangementa to assist area residents who would otherwise be unable to gain admlaalon to obtain aervlcea available in the facility. Examplea of alternative arrangements a facility might use include: (1) authorizing the individual's physician. if licensed and otherwise qualified, to treat the patient at the facility even though the physician doea not have atafl privileges at the facility: (11) for ihoae patienta who have no physician, obtaining the voluntary agreement of physicians with staff privileges at the facility to accept referrals of such patients, parhapa on a rotating beaia; (Ul) J an insufficient number of physldans with staff privileges agree to participate in a referral arrangement requiring acceptance of referrals aa a condition to obtaining or renewing staff privileges; (iv) establishing a hoepltal-baaed primary can clinic through which patienta needing hospitallzation may be admitted: or (v) hiring or contracting with qualified physicians to treat patienta who do not nave private physicians. (2) A facility, as required, la • qualified provider under the Title XlX medicaid program, but few or none of the physicians with staff privileges at the facility or in a particular department or sub-department of the facility will treat medicaid patients. lf the effect to that some medicaid patienta are excluded from the facility or from any aervice provided in the facility, the facility la not in compliance with its community service aasurance. To be ta compliance a facility doea not have to require all of It* staff physldans to accept medicaid. However, it muat take stepa to ensure that medicaid beneficiaries have full acceaa to all of its available senlccs. Example* of step* that may be taken Include: (i) obtaining the voluntary agreement of a reaaonable number of physitiana with staff privileges el the facility and in each department or tub-department to accept referral of medicaid patienta, perhaps on a rotating basis: (U) if an insufficient number of physician* with staff privileges agree ta participate in a referral arrangement 171

172 29381 (C] The date or approximate date on which the event complained of occurred, and (D) A statement of what actions tht complainant considers to violate the requirements of this subpart (ii) The Secretary promptly provides a copy of the complaint to each facility named in the complaint (3) When the Secretary investigates a facility, the facility shall provide to the Secretary on request any documents, records and other information concerning its operations that relate to the requirements of this subpart (4) The Act provides that if the Secretary dismisses a complaint or the Attorney General haa not brought an action for compliance within six months from the date on which the complaint is Bled, the person filing it may bring a private action to effectuate compliance with the aasurance. lf the Secretary determines that he will be unable to issue a decision on a complaint or otherwise take appropriate action within the six month period, he may, based on priorities for the disposition of complaints that are established to promote the most effective us* of enforcement resources, or on the request of the complainant If'sm'H the complaint without a finding aa to compliance prior to the end of the six month period, but no earlier than 45 days after the complaint is filed. (b) Enforcement. (1) lf the Secretary finds, based on his investigation under paragraph (a) of this section, that a facility did not comply with the requirements of this subpart he may take any action authorized by law to secure compliance. including but not limited to voluntary agreement or a request to the Attorney General to bring in action against the facility for specific performance. (2) lf the Secretary finds, baaed on his investigation under paragraph (a) of this section, that a facility haa limited the availability of its services in a manner proscribed by this subpart he may, hi addition to any other action that he is authorized to take in accordance with the Act require the facility to establish an effective affirmative action plan that in his judgment is designed to insure mat its services are made available in accordance with the requirements of this subpart IU4JOT Federal Register / Vol. 44. No. 98 / Friday. May 18. 1979 / Rulea and Regulation! requiring acceptance of referrals n t condition to obtaining or renewing staff privilege* (lit) establishing a clinic through which medicaid beneficiaries needing hospitalization may be admitted; or (iv) hiring or contracting with physicians to treat medicaid patients. (3) A facility requirea advance deposits (pre-admisslon or pre-service deposits) before admitting or serving patients. lf the effect of this practice ls that some persons are denied admission or service or face substantial delays in gaining admission or service solely because they do not have the necessary caah on hand, this would constitute a violation of the community service aasurance. While the facility is not required to forego the use of a deposit policy in all situations, it is required to make alternative arrangements to ensure that persons who probably can pay for the services are not denied them simply because they do not have the available caah at the time services are requested. For example, many employed persons and persons with other collateral do not have savings, but can pay hospital bills on an installment baais, or can pay a small deposit Such persons may not be excluded from admission or denied services because of their inability to pay a deposit 1114.104 Posted none*. (a) The facility shall post notices, which the Secretary supplies in English and Spanish, in appropriate areas of the facility, including but not limited to the admissions area, the business office and the emergency room. (b) lf in the service area of the facility the "usual language of households" of ten percent or more of the population, according to the most recent figures published by the Bureau of the Census, is other than English or Spanish, the facility shall translate the notice into that language and post the translated notice on signs substantially similar in size and legibility to, and posted with, those supplied under paragraph (a). (c) The facility shall make reasonable efforts to communicate the contents of the posted notice to persons who it haa reason to believe cannot read the notice. I requirement*. (a) Reporting requirement*. (1) Timing of reporte. (i) A facility shall submit to the Secretary a report to aasist the Secretary in determining compliance with this subpart onos every three fiscal years, on a schedule to be prescribed by the Secretary. The report required by this section shall be submitted not later than 90 days after the end of the fiscal year, unless a longer period is approved by the Secretary for good cause shown. (ii) A facility shall also submit the required report whenever the Secretary determines, and so notifies the facility in writing, that a report ls needed for proper administration of the program. ln this situation the facility shall submit the report specified in this section for the filing of reports, within 90 days after receiving notice from the Secretary, or within 90 days after the close of the fiscal year, whichever is later. (2) Content of report The report must be submitted on a form prescribed by the Secretary and must include information that the Secretary prescribes to permit a determination of whether a facility haa met its obligations under this subpart (3) The facility shall provide a copy of any report to the USA for the area when submitting it to the Secretary. (4) Institution of nut. Not later than 10 days after being served with a summons or complaint the applicant "i^n matitf the Regional Health Administrator for the Region of HEW in which it la located of any legal action brought against it alleging that it haa failed to comply with the requirements of this subpart.i (b) Record maintenance requirements. (1) A facility shall maintain, male* available for public inspection consistent with personal privacy, and provide to the Secretary on request any records necessary to document its compliance requirements of this subpart in any fiscal year. including documents from which information required to bf reported under paragraph (a) of this section waa obtained. A facility shall maintain these records until 180 days following the close of the Secretary's investigation under I I24,606(a). 1 124, 60s Invanlajaiton ano a (a) lnvestigation!. (1) The Secretary periodically investigates the compliance of facilities with the requirements of this subpart and investigates complaints. (2)(1) A complaint is filed with the Secretary on the date on which the following information is received la the Office of the Regional Health Administrator for the Region of HEW in which the facility is located: (A) The name and addreas of the person malting the complaint or on whose behalf the complaint is mads; (B) The name and location of the facility; 'TW sJdr tttm IUalce«J Ottos an set s« ki «S CT JL UL (a) When the Secretary finds that it will promote the purposes of this subpart and the State agency is able and willing to do so, be may enter into l with tie State (fancy for

173 / Vol. 44. No. • / Mday. fcfey Ml M79 / RuUi and Rtgolations the State •Rcac? to «sel» t Urn tm erftoinesiSTlng mis ssjhaart mete: (b) Under u agreement the State agency will provide- the Secretary with any aeaaaiaara he isa»saals ra any one or •ore of the foUewtag arwaa, aa earl fat tn eppefcane* exaapt where to facility aeaislad did .ol provide health eervicae wh.o approved. In tial cue. ih. rain becaajs applicable when tht facility begsn to provide services. PtopOMd 42 Cn 124.KQ. (1) tavwhsjrtioa of ceaaaeiecnes of Doocompliance; (2J Monitoring the compliance of facaUbea with the requirements of tUa aubpart: (3) Review of affirmative action plua eubmitted under 1124 §06(1.). (4) Review of seporta aubmiUed under | 124.805; (5) Making isUUal dadaioM far the Secretary with reapect to compliance. swbjecl to appeal by any party to (ha Secretary at review by toe Secretary OB hit own initiative: and (•) Application of any aancUooa available to it under State Uw (such aa Dcense revocation or termination of State aaaUlaaca) againal ladlltiea determined to be out of complianc* with the requirements of Una aubpart. (c) A State agency nay uae funds received muter aectkm 1525 ef the Act IB pay for expenses ncarred in the courae of carrying owl this agreement (d) Nothing in lhla subpart precludes any State from taking any action authorized by State law regarding the provision of services by any facility fa the State aa long aa the action taken doea not prevent the Secretary from enforcing the requlrementa of thia subpart •UMMAKT Of PUBLIC COMMENT* AND DEPARTMENTS ACTIONS ON THE UNCOMPENSATED SERVICES AND COMMUNITY SntVKX REGULATIONS TSe pnblrc comments and the Department*! rummarlzed below. The discusslon proceeds asaneanaBy through me regulations, hi order to wue un demanding of the enmmsala aad me Department's respoaaa. a brief background statement of the nis ling aad proposed ruin precedes each section. LApphcaUUtys* mania*. A. Background The prasant rales, ael eal al 41CFS Sim apply only to Title Vl facilities. They apply la fsdllnes misled with grand tor 20 yean after oenpletioD of oonstruction end to facilities mined with loan or loan tumntees during tht period tn which the loan remalns unpaid. 42 CFR 53.111 [a). The proposed niles retained the potides of ma pnseot mla* for Tide Vl facilities, adding a defini lion ef the term "inplanan ef constrKSotL-For Tllle XVI assisted iecOUiaa. me ralea ayphed "al all I following approval af me Tide XVl at f rear limn fcr TUle Vl mdhaea ae | A huge cumber envtd that It should be aUmlaaUd entirely, an faandi each a> me following, substantial coiaueaar need and hospMaU' ability Li provide sirvuas. the alleged failure of the Department and Title Vl State agendes to enforce me obligations 1n rhe past ma lach of statutory anpport for me JO year limit Many conoroen asserred that prior to -an. when the B y«ar hmtt waa ntablishad. me duty to provide •ncompenMtad care waa eeeeataany anncogruzed aad that siace 1B72 anfcrcemenl haa been inadequate or UlanL Several ™>p-'-~ ~ aiphaabed that the duratlonal limitation U strictly ngulalory. Thus, they aijue that fadlltiaj wtnck received aid before 1972 did not rely oa me Unntahon. According re cenawnera. the cam died in the prapoeed ralea M apkoldiai me M year hmlt menry enoane the Depejmienf s naVodtj to apply a Umilatian but would not Wr the lemrmel er attention by the Department of tt Other coaaumen. however, acknowladfed that 20 yean of actually providing senrlces mlfbl be "reanmable-, aa well as politically more acceptable than restoranon of aa unlimited duty. They therefore aiujgeated variou modiflcattooa of the dursdooal limitation. The propouls UD.I commonly made were having the 10 yean ran from (1) the eflecflve dele of the aew refulaaaoK \f) the date the facility can document ita provision of uncompaaaaled can or the completion of construction, whichever is later, or (9) 1972. when the enisling regulations wen inoed. on the theory that men were no compliance enndardt [and hence an compliance) baron that date. If me 10 year amltation wen to ran from me effective date of Ike new nfnlenona, a few commend sugg*«ted that the ngiilalama provide for a credit tor r»an 1n which a facility met the 1*" or "lov1 level of can nis also urged that If me praam » year limit la awinlalnad. U be enforced ntrospecnvety. 2. Andiier conemner snggertjon was that me aapplemntal pragrems mctaded tn me Federal aittsiuce base vpm which the W» compliance level ts cakulatad should be edded to 1 124 WHal thereby makmg U— ngulaUeos appUcable la theae supplementary proaTams. a. Provider ccmmanas ^ supported the preposed ntenboo of the Title Vl time limits on the ancompensaled services obUgaoon. it wai argovd that the donnonal limit ls steru tartly required. La, that the obligation to the government shoeM laat enry as long aa the government's right al reosvery (section 008 of the Act) and that the term "nasooable volume" tmpUes an absolute dollar aaaounl a/ servicas that la iacaaaaataart with an open-ended obUfettoa. ^ provided alao argued thai slimlnating or examding the duratianal Umllalion now would constitute "impairment of contract", particularly with nspect to those facilities mined after 1B72 They arfoed that any exteualuu of the ootigstion woud tmpair their long-term fhiendd sornncy and dhrrrt hmds tram patient can. and that lacflitiaa mat have undertaken long-tar™ *"»»*^^ pisua and commitments nrying en their hmltad obliaanons under me uraaml regeianaaa would be aujnificandy harmed. 4. Providen generally opfosad the applicahility of the ••—-~-p--"I*d services assurance without a duraiional Hltr^f*^" for Title XVI aasisted facilities. Ses proposed 1124.501(b)[2) Some assarted that me perpetual obligation waa unauthorized, and that the period of obligation should he the same aa for Title VI Mslted facilities. Some argued met the Department has mlsinlerprered the stsratory language "at aD tunes." and that me phrase only meant "at ail tunes1 daring the period tn which the obligation applies (that ts. » yean]. Pioviden also expneaed me vww mat tt would be prablbioveljr cosdy to assuuii aa open-ended obugation and lie I me net effect of each e nala would be to dlenmiafs provider! boa seekinj sssislanre «nd«r Tide XVI a result aot Intended by Cengnaa. Otben argued that the effect of the rule would be to perpetually p-"-"«* private-pay patients, who must bear the cost of the aacompeuated services provided. 5. A few provider and government comments opposed the clarification of the term "completion of eaoatruction" tn ma proposed rules. They ergued that tais change would only cause confusion, since for most Tide Vl facilities the commencement of the obugation b abeady dearly estabushed C OeporoaarWa Kcliamt WHaa/wixt Although the Department has tetalnad me » year period of ebllgalian tor Tide Vl assisted Udlioes it haa made one change mat la responsive to those coauaenta that urged thai the 20 year period should not be need to "forgive- non-compliance during me » year period. Section U4J01(b)(l) now pennlts lengthening or shortening of the durations! limitations for TUle V] fscilibn. to be conahrtent with the deficit make.up and excess compliance provisions of 1124.503 (b) and (c). The concept underlying those sections ts that Tine Vl facilities undertook to provide e total "whams" ef eervlcee. The ste of thst rohnne at a mncaoa of both me ennval compliance level and the remaining period of abliganoa. but it •> tn sas in re a fixed amount of services. That being me cass. facilities that fall to provide mat volume before their 20 year period of obligation axplns should not baaafit boa their falaue. while facilities that man than aicet their obligation hi some yean should be cndiied with the extra amount of services provided. These considerations dictated adjustment of the period of obugation. The discussion below of me oompliance level end deficit and excess compliance pruriaiuiis explsins the Departmeafs posMoei saon hUy.