Hunton Employment & Labor Perspectives

Earlier this year, the Department of Health and Human Services Office of Civil Rights published final rules implementing Section 1557 of the Affordable Care Act (ACA).  Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability by healthcare providers and group health plans that receive federal financial assistance. The rules include restrictions on discrimination relating to gender identity, as well as requirements regarding accessibility for individuals with limited English and with disabilities.

In addition to hospitals, health care providers and other entities that operate health programs and activities, the new rules also apply to employee health plans operated by these types of entities, as well as group health plans that receive federal financial assistance (such as Medicare Part D subsidies). Click here to read more about how the rules apply in the health plan context and for more details on the requirements.

For health plans, the aspects of the new rules that are likely to be of most interest are those that relate to coverage of benefits for transgender  individuals. While the rules do not affirmatively require health plans to cover any particular procedure or treatment for transition-related care, they do prohibit plans from imposing any categorical coverage exclusions or limitations, denying or limiting coverage, or imposing additional cost sharing for specific health services if it results in discrimination against a transgender individual.

In addition, the new rules require covered entities to post a notice in significant publications and communications, conspicuous physical locations, and in a conspicuous location on the covered entity’s web site. The notice must inform readers of the following:

• That the covered entity does not discriminate on the basis of race, color, national origin, sex, age or disability in its health programs activities;
• That the covered entity provides language assistance services and appropriate aids and services for individuals with disabilities, and how to obtain such aid and services;
• The designated responsible employee (if applicable), and contact information for such person;
• The availability of grievance procedures and how to file a grievance (if applicable); and
• How to file a discrimination complaint with OCR.

In addition to the content above, the notice generally must include “taglines” in the top 15 languages spoken by individuals with limited English proficiency in the relevant state(s). There are separate slightly abbreviated notice and tagline requirements for “small sized” publication. A model notice and translation resources are available here, and a sample grievance procedure is available here.

The final rules were generally effective July 18, 2016, and the notice is required to be posted by October 16, 2016. However, to the extent that certain provisions of the rules require changes to health insurance or group health plan benefit design, they apply in the first plan year starting on or after January 1, 2017. Read more about these rules.