May 20, 2016 – Compliance Observer Alert – HHS Issues Final Rule on Nondiscrimination in Health Programs

Compl Obs Header Alert_2016

May 20, 2016

HHS Issues Final Rule on Nondiscrimination in Health Programs

On May 13, 2016, the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued the Final Rule titled “Nondiscrimination in Health Programs and Activities,” which prohibits discrimination under Section 1557 of the Affordable Care Act (ACA). HHS states that the purpose of this rule is to “help advance equity and reduce health disparities by protecting some of the populations that have been most vulnerable to discrimination in the health care context.” Specifically, under the rule, individuals may not be discriminated against in health care on the basis of race, color, age, national origin, disability, or sex.”

The protection from discrimination based on sex notably applies not only to an individual’s sex, but also to pregnancy, gender identity, and sex stereotyping. Section 1557 of the ACA, which is implemented by this rule, was the first federal civil rights law to broadly prohibit discrimination based on sex in federally funded health programs. (Prior civil rights laws overseen by OCR dealt generally with discrimination based on race, color, national origin, disability, or age; sex, however, has never been included on this list.)

Who is subject to this rule?

The scope of this rule is broad and specifically covers:

  • All health care providers, health insurance issuers, employers, health care programs or activities that receive any Federal funding/financial assistance from HHS (e.g. Medicare Part A, student health plans, advanced premium tax credits, etc.)
  • All Health Insurance Marketplaces (Federal and state) and issuers that participate in the Marketplaces; and
  • Any health program administered by HHS.

What are the key provisions of the rule?

Generally, this rule implements Section 1557 of the ACA, which sought to expand upon existing Federal civil rights law by protecting, for the first time, sex discrimination in health care. Other provisions under this rule also require additional protections for individuals with disabilities as well as those who may be discriminated against based on national origin due to English not being their first language, for example. Specific protections addressed in the rule include but are not limited to the following:

  • Women must be treated equally with men related to the health care they receive and the insurance they obtain.
  • Individuals may not be denied access to health care or coverage due to their sex. The term “sex” here includes pregnancy, gender identity, and sex stereotyping. This provision expands protection for transgender individuals, specifically, as one may not be denied services (or offered limited services) that are ordinarily or exclusively available to individuals of one gender due to the sex assigned to an individual at birth, or an individual’s gender identity or recorded gender. Additionally, categorical coverage exclusions or limitations for all health care services related to gender transition are considered discriminatory.
  • Covered entities are required to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others. Such entities must also provide appropriate auxiliary aids and services to these individuals and notices confirming how such individuals can obtain aids and assistance with no charge and in a timely manner. These entities must also generally provide any programs and activities delivered through electronic or information technology to these individuals, unless a limited exception applies.
  • Covered entities are required to take reasonable steps to provide meaningful access to individuals with limited English proficiency. Such entities must provide notices and “taglines” to their employees and the general public explaining how individuals who do not speak English may obtain language services. There are specific guidelines for these notices and taglines included in the rule. Additionally, covered entities are encouraged to develop and implement a language access plan.

When is the rule effective?

This Final Rule is effective July 18, 2016. However, any health plan that requires changes in benefit design to comply with this rule must comply instead by the first day of the plan or policy year beginning on or after January 1, 2017.

Additional information on this Final Rules can be found via the following links:

Full Text of HHS Final Rule

HHS Press Release

HHS Summary of Final Rule

HHS FAQs on Final Rule

HHS Factsheets on Key Provisions in Final Rule:

Source: Department of Health and Human Services (; CIGNA Informed on Reform  

Please contact your AssuredPartners NL Benefits Team if you have questions or need assistance with these or other compliance matter

Information contained herein is for educational and/or informational purposes only.   The information provided may change over time as the laws and regulations change. This information is not, nor is it intended to be, legal advice and each employer or client should seek their own legal counsel for guidance regarding individual situations.

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