Nondiscrimination Regulations Finalized

The Department of Health and Human Services (HHS) recently 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 benefits 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:

• Hospitals
• Nursing homes
• Home health agencies
• Laboratories
• 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

When determining if it receives federal financial assistance through Medicaid payments, meaningful use payments, or other payments a physician or physicians' group would not count Medicare Part B payments because that is not considered federal financial assistance. In the proposed rule, HHS estimated that most physicians will still be a covered entity because they accept federal financial assistance from other sources. The final rule includes the same estimate of physicians receiving federal financial assistance as in the proposed rule because almost all practicing physicians in the United States accept some form of federal reimbursement other than Medicare Part B. As a result, most physicians are reached by this rule. Covered entities must take steps to notify beneficiaries, enrollees, applicants, or members of the public of their nondiscrimination obligations with respect to their health programs and activities.

Covered entities are required to post notices stating that they do not discriminate on the grounds prohibited by Section 1557, and that they will provide free (and timely) aids and services to individuals with limited English proficiency and disabilities. These notices must be posted in conspicuous physical locations where the entity interacts with the public, in its significant public-facing publications, and on its website home page. In addition, covered entities that employ 15 or more persons must designate a responsible employee to coordinate the entity's compliance with the rule and adopt a grievance procedure. For detailed information on how the rule addresses sex, gender, and sexual orientation discrimination, how marketplace plans and third party administrators are affected, discrimination against persons with Limited English Proficiency (LEP) and disabilities, enforcement mechanisms, and the key differences between the proposed and final rule, download UBA’s ACA Advisor, “Nondiscrimination Regulations Relating to Sex, Gender, Age, and More Finalized”.

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_{By Danielle Capilla, Chief Compliance Officer at United Benefit Advisors}