The Department of Health and Human Services (HHS) has issued the first of the anticipated nondiscrimination rules, which sets forth proposed regulations to implement Section 1557 of the Patient Protection and Affordable Care Act (ACA). Section 1557 provides that individuals shall not be excluded from participation, denied the benefits of, or subjected to discrimination under any health program or activity which receives federal financial assistance, on the basis of race, color, national origin, sex, age, or disability. The proposed regulations also apply to any program administered by an agency of the federal government or 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 covered as Title I entities, as are Federally-Facilitated Marketplaces.
Although the proposed regulations are aimed primarily at preventing discrimination by health care providers and insurers, it would also apply to the 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 administer, or health insurer.
Affected employers can and likely will 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
A physician or physicians' group determining if it receives federal financial assistance through Medicaid payments, meaningful use payments, or other payments would not count Medicare Part B payments because that is not considered federal financial assistance. HHS estimates that, despite that, most physicians will be a covered entity because they accept federal financial assistance from other sources.
Covered entities would be required to post notices that they do not discriminate on the grounds prohibited by Section 1557, and that the entity 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 homepage.
Download UBA’s ACA Advisor, “HHS Proposes First of Anticipated Nondiscrimination Regulations” for additional information on:
- Sex, gender, and sexual orientation discrimination
- Discrimination against persons with limited English proficiency and disabilities
- Nondiscrimination in marketplace and other health plans