HHS & OCR Final Rule on Nondiscrimination in Health Programs and Activities
On May 13, the Department of Health and Human Services (HHS) and the Office of Civil Rights (OCR) issued a final rule on nondiscrimination in health programs and activities under Section 1557 of the Affordable Care Act (ACA), which protects classes of individuals whose health coverage may not be denied, cancelled, limited or refused based on race, color, national origin, sex, age, or disability.
The rule goes into effect July 18, 2016, but should a plan require a change in benefits design they are required to comply on the first day of the plan or policy year beginning on or after January 1, 2017.
All entities that are subject to nondiscrimination requirements must ensure that all their employer-sponsored plans are compliant.
Final rule key provisions and clarifications:
Expanded protection for transgender individuals
Certain services cannot be denied or limited due to an individual’s sex assigned at birth, gender identity, or recorded gender.
Required language assistance
Nondiscrimination notices and “taglines” must be made available to employees and the general public to explain how individuals can obtain language services.
- Notices must be provided in at least the top 15 non-English languages spoken in a given state
- Notices must be made available on physical premises, the web, and significant documents
- Sample tagline – ATTENTION: If you speak [insert language], language assistance services, free of charge, are available to you. Call xxx-xxx-xxxx.
Communication assistance for individuals with disabilities
Notices must also be available to employees and the public on how individuals with disabilities can receive auxiliary aids and communication services without charge and in a timely manner.
Application to administrative services only (ASO) self-insured employer plans
Self-insured plan complaints are reviewed on a case-by-case basis to determine liability for discriminatory activity between the employer, insurer and/or third party administrator. Third party administrators of self-insured plans are generally liable for their own discriminatory actions. But with insured plans, the insurers are liable for any discriminatory benefit design. In the end, both plan types should be updated to be in compliance with the new final rule.
Section 1557 of the ACA and the final rule do not apply to expatriate health plans, expatriate health insurance issuers, or employer plan sponsors of expatriate plans, as defined in the Expatriate Health Coverage Clarification Act (EHCCA).
HHS Factsheets: Protecting Individuals against Sex Discrimination
Ensuring Meaningful Access for Individuals with Limited English Proficiency
Ensuring Effective Communication with and Accessibility for Individuals with Disabilities
Coverage of Health Insurance in Marketplaces and Other Health Plans
For more information contact firstname.lastname@example.org. The information contained in this post, and any attachments, is not intended and should not be misconstrued as legal advice. You should contact your employment, benefits or ERISA attorney for legal direction.