HHS Finalizes ACA Nondiscrimination Rules

This final Affordable Care Act (ACA) rule prohibits discrimination based on race, color, national origin, sex, age or disability; enhances language assistance for individuals with limited English proficiency; and protects individuals with disabilities. These nondiscrimination rules are not to be confused with the nondiscrimination rules for fully insured plans that have yet to be issued by the Internal Revenue Service.

The Department of Health and Human Services (HHS) has issued a final rule intended to advance health equity and reduce health care disparities. Under the rule, individuals are protected from discrimination in health care on the basis of race, color, national origin, age, disability and sex, including discrimination based on pregnancy, gender identity and sex stereotyping.

In addition to implementing ACA Section 1557’s prohibition on sex discrimination, the final rule also expands language assistance requirements for people with limited English proficiency and is intended to ensure effective communication for individuals with disabilities. The protections in the final rule and Section 1557 regarding individuals’ rights and the responsibilities of many health insurers, hospitals and health plans administered by or receiving Federal funds from HHS build on existing Federal civil rights laws to advance protections for underserved, underinsured and often excluded populations.

The regulations make it clear that insurance companies participating in the ACA marketplaces cannot discriminate even when acting as a third-party administrator (TPA) for a self-funded health plan. If an insurance company acting as a TPA has engaged in discrimination, HHS will process the complaint against the insurance company. The rules do not apply directly to the employer sponsoring a group health plan, unless the employer is a covered entity, such as a hospital. If the employer is not a covered entity and has engaged in discrimination, OCR says it will refer the matter to the appropriate federal agency, such as the Equal Employment Opportunity Commission.

Previously, civil rights laws enforced by HHS’s Office for Civil Rights (OCR) broadly barred discrimination based only on race, color, national origin, disability or age.

The final rule prohibits sex discrimination in health care including by prohibiting denial of health care or health coverage based on an individual’s sex, including discrimination based on pregnancy, gender identity and sex stereotyping.

It also includes protections for individuals with disabilities and enhances language assistance for people with limited English proficiency including by:

  • Requiring covered entities to make electronic information accessible to individuals with disabilities and to provide appropriate auxiliary aids and services for individuals with disabilities.
  • Requiring covered entities to take reasonable steps to provide meaningful access to individuals with limited English proficiency. In each State, covered entities are required to post taglines in the top 15 languages spoken by individuals with limited English proficiency in that State that indicate the availability of language assistance. Covered entities are also encouraged to develop language access plans.

While the final rule does not resolve whether discrimination on the basis of an individual’s sexual orientation status alone is a form of sex discrimination under Section 1557, the rule makes clear that OCR will evaluate complaints that allege sex discrimination related to an individual’s sexual orientation to determine if they involve the sorts of stereotyping that can be addressed under 1557. HHS says it supports prohibiting sexual orientation discrimination as a matter of policy and will continue to monitor legal developments on this issue.

The final rule states that where application of any requirement of the rule would violate applicable Federal statutes protecting religious freedom and conscience, that application will not be required.

About John Garner

John Garner has over thirty five years of experience in employee benefits. He specializes in compliance, health care reform, the Health Insurance Portability and Accountability Act (HIPAA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), and the Employee Retirement Income Security Act (ERISA). He helps clients with life, health, and disability benefits, cost containment, flexible benefits, and claim consulting.

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