An Array of Regulations

The I-9 form and Section 1557 of the Affordable Care Act.

Written by Betsy Mikel | Reviewed by Steve McKenney, PT

To assist in your understanding of the regulatory requirements that we face as practice and health care business owners, the focus here is on the I-9 form and Section 1557 of the Affordable Care Act (ACA). Multiple references are provided; please take advantage of these resources so that you have a comprehensive understanding of their requirements and of the consequences for inadequate compliance.

Are there new requirements regarding the I-9 (Employment Eligibility Verfication) form?
Beginning Jan. 22, 2017, employers must use the 11/14/2016 N version of Form I-9 Employment Eligibility Verification, to verify the identity and work eligibility of every new employee hired, or for the reverification of expiring employment authorization of current employees (if applicable). Employers who fail to use Form I-9 (11/14/2016 N) on or after Jan. 22, 2017, may be subject to all applicable penalties under section 274A of the Immigration and Nationality Act.

The I-9 consists of three sections.

Section 1 must be completed and signed by employees on or before the first day of employment. Employers must make I-9 completion instructions and the Lists of Acceptable Documents available to employees so that they can complete the document correctly.

Section 2 is completed and signed by the employer within three (3) business days of the hire date (first day of work for pay). The employee must present unexpired original documentation(s) that shows the employer his or her identity and employment authorization. The employer must physically examine each document to determine if it reasonably appears to be genuine.

Section 3 is completed by employers for employees who are rehired or whose employment authorization requires reverification. This is required when

• An employee is rehired within three (3) years of the date on the originally completed I-9, and/or
• When the employee has a legal name change

Employers should not reverify:

• U.S. citizens and noncitizen nationals
• Lawful permanent residents who presented a Form I-551, Permanent Resident, or Alien Registration Receipt card for Section 2. This includes conditional residents.
• List B documents

The completed I-9 and corresponding documents should be stored in a manner that fits the employer’s business needs and facilitates access to the I-9 form for inspection. Forms may be stored on site or at an off-site storage facility, in a single format or a combination of formats, such as paper and/or electronic medium. There is no restriction on filing the I-9 with the employee’s personnel files, but segregation of the form from other personnel files could expedite access to it for an inspection.

Guidance for the answers to this question was obtained from the U.S. Citizenship and Immigration Services (USCIS) website. The USCIS published an updated Handbook for Employers: Guidance for Completing Form I-9 (PDF, 5.36 MB) dated Jan. 22, 2017.

What is Section 1557 of the ACA and does it apply to me as a small physical therapy practice owner?
Section 1557 is a nondiscrimination law established in the Affordable Care Act (ACA). It builds on long-standing nondiscrimination laws and provides new civil rights protections. Specifically, it prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities. Section 1557 expands access to health care and coverage by eliminating barriers and reducing health disparities. Sex discrimination is a focal point of this law in that it prohibits discrimination based on an individual’s sex, including pregnancy, related medical conditions, termination of pregnancy, gender identity, and sex stereotypes.

You must comply with Section 1557’s regulations if you accept financial assistance or payments from the U.S. Department of Health and Human Services (HHS). Some, but not all, payment and assistant sources include: Tricare, Medicaid, Medicare Parts A, C, and D payments. Part B is not included as a payment source under Section 1557.

There are many prohibitions set forth by HHS but those that definitively apply to private practitioners are

• Discrimination based on race, color, or national origin;
• Discrimination based on an individual’s English proficiency;
• Discrimination based on an individual’s sex;
• Discrimination based on an individual’s age;
• Discrimination based on an individual’s disability.

You (physical therapy practices) must meet the following requirements:

• Provide equal access to your facility and services to individuals with physical and mental disabilities;
• Provide free aids and services to people with speech, visual, or hearing disabilities to communicate effectively, such as:
• Qualified sign language interpreters;
• Written information in other formats (large print, audio, accessible electronic formats, other formats)
• Provide free language services to people whose primary language is not English, such as:
• Information written in other languages
• Qualified interpreters
• Post a “Notice of Non-Discrimination” conspicuously in your clinic, on your website’s home page, and in newsletters, marketing pamphlets, etc., that target patients;
• Publish taglines, which are short statements in non-English languages, in significant publications and post them in prominent locations in the clinic and on its website, to notify the individual about the availability of language assistance services;
• Provide a contact person (compliance officer, etc.) for all Section 1557 discrimination and patient rights matters;
• Develop and enforce a grievance program (practices with 15 or more employees);
• Provide contact information to allow an individual to file a discrimination complaint with HHS.

The following information was not able to be verified, but according to the National Association of the Deaf’s Law and Advocacy Center, “Eligible small businesses may claim a tax credit of up to 50 percent of eligible access expenditures that are over $250, but less than $10,250. The amount credited may be up to $5,000 per tax year. Eligible access expenditures include the costs of qualified interpreters, CART [captioning] services, and other auxiliary aids and services. Omnibus Budget Reconciliation Act of 1990, P.L. 101-508, § 44” (www.nad.org/resources/health-care-and-mental-health-services/health-care-providers/questions-and-answers-for-health-care-providers/).

Read the final rule, in its entirety, in the Federal Register: www.gpo.gov/fdsys/pkg/FR-2016-05-18/pdf/2016-11458.pdf

Mary R. Daulong, PT, CHC, CHP, is a PPS member and the owner of Business & Clinical Management Services, Inc., a consulting firm specializing in outpatient therapy compliance, including documentation, coding and billing, enrollment and credentialing, and Health Insurance Portability and Accountability Act and Occupational Safety and Health Administration regulation education. She is also the author of both The Private Practice Compliance Manual and The Third-Party Biller Compliance Manual. She can be reached at daulongm@bcmscomp.com.