In Case You Missed It: Final Rule on Nondiscrimination Regulations Released
Originally posted by United Benefit Advisors. On May 13, 2016, the Department of Health and Human Services (HHS) issued a final rule implementing Section 1557 of the Patient Protection and Affordable Care Act (ACA), which will take effect on July 18, 2016. If entities need to make changes to health insurance or group health plan benefit design as a result of this final rule, such provisions have an applicability date of the first day of the first plan year beginning on or after January 1, 2017. ACA Section 1557 provides that individuals shall not be excluded from participation, denied the benefits of, or be subjected to discrimination under any health program or activity which receives federal financial assistance from HHS on the basis of race, color, national origin, sex, age, or disability. The rule applies to any program administered by HHS or any health program or activity administered by an entity established under Title I of the ACA. These applicable entities are “covered entities” and include a broad array of providers, employers, and facilities. State-based Marketplaces are also covered entities, as are Federally-Facilitated Marketplaces. The final regulations are aimed primarily at preventing discrimination by health care providers and insurers, as well as employee benefits programs of an employer that is principally or primarily engaged in providing or administering health services or health insurance coverage, or employers who receive federal financial assistance to fund their employee health benefit program or health services. Employee benefits programs include fully insured and self-funded plans, employer-provided or sponsored wellness programs, employer-provided health clinics, and longer-term care coverage provided or administered by an employer, group health plan, third party administrator, or health insurer. Affected employers include:
- Nursing homes
- Home health agencies
- Community health centers
- Therapy service providers (physical, speech, etc.)
- Physicians’ groups
- Health insurers
- Ambulatory surgical centers
- End stage renal dialysis centers
- Health related schools receiving federal financial assistance through grant awards to support 40 health professional training programs
- The final rule does not include any blanket religious exemptions; however, application of any requirement of the rule will not be required if it violates federal statutory protections for religious freedom and conscience.
- The final rule modifies the notice requirement to exclude publications and significant communications that are small in size from the requirement to post all of the content; instead, covered entities will be required to post a shorter nondiscrimination statement in such communications and publications.
- The final rule replaces the national threshold with a state-specific threshold requiring taglines in at least the top 15 non-English languages spoken by LEP populations in each state.
- The final rule provides that sex-specific health programs are allowable only where the covered entity can demonstrate an exceedingly persuasive justification that the sex-specific program is substantially related to the achievement of an important health-related or scientific objective.
- The final rule takes reasonable steps to provide meaningful access by requiring the Director of the OCR to evaluate, and give substantial weight to, the nature and importance of the health program or activity and the particular communication at issue to the individual with LEP, and take into account all other relevant factors, including whether the entity has developed and implemented an effective language access plan. The final rule deletes the specific list of illustrative factors in the proposed rule.