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Proposed Regulations Would Extend Health Care Reform’s Nondiscrimination Rules to All Health Plans of Exchange Insurers

HHS Notice of Proposed Rulemaking: Nondiscrimination in Health Programs and Activities, 45 CFR Part 92, 80 Fed. Reg. 54171 (Sept. 8, 2015); Frequently Asked Questions: Section 1557 of the ACA; Fact Sheet: Nondiscrimination in Health Programs and Activities Proposed Rule

Proposed Regulations


Fact Sheet

Visit the Health Care Reform Community on Checkpoint to join the discussion on this development (for Checkpoint subscribers to EBIA’s Health Care Reform manual).

HHS has proposed rules implementing health care reform’s prohibition on discrimination in certain health programs and activities on the basis of race, color, national origin, sex, age, or disability. The proposed regulations, which are intended to combine and harmonize existing protections under federal civil rights laws, would apply to a wide variety of federally assisted entities and their “health programs or activities.” This includes federal and state Exchanges (including Small Business Health Option Programs (SHOPs)) and insurers that participate in the Exchanges—even with respect to plans and services offered by those insurers outside the Exchanges or, in some instances, as a third-party administrator (TPA) for an employer group health plan. They would also apply to employee health benefits of certain employers that receive federal financial assistance and are principally engaged in health care (e.g., hospitals and nursing homes).

As proposed, the regulations would prohibit insurers that participate in Exchanges from denying, canceling, limiting, or refusing to issue or renew policies on any of the prohibited bases or from using discriminatory benefit designs. The rules specifically would not limit any rights or remedies available under any other federal, state, or local nondiscrimination law. Moreover, they would extend existing Title IX protections for education programs to prohibit covered entities from discriminating on the basis of sex in health care. This would mean, among other things, that individuals could not be denied health care or health coverage based on their sex, including on the basis of pregnancy, sex stereotyping, or gender identity. Noting that current law is mixed on whether existing federal nondiscrimination laws prohibit discrimination on the basis of sexual orientation as a part of their prohibitions of sex discrimination, HHS has requested comments on the extent to which sexual orientation discrimination should be prohibited by these regulations. Other nondiscrimination issues are also addressed, including proposed rules requiring covered entities to post a notice about available communications assistance for individuals with limited English proficiency or disabilities.

EBIA Comment: Employers will want to keep a close eye on these proposed rules since they would impact group health plans and TPA services provided by Exchange insurers inside and outside the Exchanges. As we have previously noted in the context of Title VII (see our article), existing law on discrimination based on sexual orientation is in flux, and this is further evidenced by the request for comments in these proposed regulations. It will be interesting to see how the final regulations address the issue in the context of health coverage. For more information, see EBIA’s Health Care Reform manual at Section XXXIV.A (“Nondiscrimination Protection: Grounds Prohibited Under Federal Laws”); see also EBIA’s Group Health Plan Mandates manual at Section XXI.A (“What is Title VII, as Amended by the PDA, and Who Must Comply?”).

Contributing Editors: EBIA Staff.

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