By: HUB’s EB Compliance Team

Employers who receive federal financial assistance are likely familiar with the requirements under Section 1557 of the Affordable Care Act (“ACA”) that require nondiscrimination notices and taglines that apply to their other notices. (More information on which employers are subject to these rules is available here.)

Executive Order 12866, reissued by President Trump on January 30, 2017, directed agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects; distributive impacts; and equity). It is with this focus, that the Department of Health and Human Services (“HHS”) reexamined Section 1557.

What the Rules Currently Require

Among other requirements, the rules currently require:

  • A notice of non-discrimination
  • That significant communications contain taglines in 15 different languages advising individuals of the availability of language assistance
  • That other communications contain similar taglines, but only in three different languages

These rules not only apply to health care providers, but also to health insurance issuers who are offering coverage on ACA exchanges/marketplaces. HHS also has taken the position that these insurance carriers must extend these protections even to the parts of the business serving self-funded plans (although the self-funded plans themselves may be exempt from these rules).

As a result, many insurers include these taglines on explanations of benefits, among many other communications. They did this regardless of whether the plan they were servicing was insured or self-funded.

The Proposed Rule Would Remove Notices and Taglines Requirement

HHS recently released proposed regulations that would, among other proposed changes, remove the notice and tagline requirements. This means employers subject to these rules would no longer have to post a notice of non-discrimination or add non-English taglines to their communications. This would significantly reduce the burden on these employers. HHS estimates that the cost savings for this and other related changes will be $3.6 billion over five years.

Other Proposed Changes

In addition, HHS proposes to narrow the scope of the rules as they apply to health care entities. Under the current regulations, the nondiscrimination rules would extend to all activities of the health care entity. Under the proposal, the rules would only extend to the health care activities of that entity.

The proposed rules also revise the scope of the nondiscrimination protections and enforcement structure. These changes were specifically in response to litigation over these provisions. Limiting the scope of the nondiscrimination rules is intended to give states a greater role in defining and enforcing discrimination protections based on gender identity. Additionally, the federal enforcement of discrimination laws would, under the proposal, go back to the processes in place before the Section 1557 rules were finalized.

Takeaway

For now, the law has not changed; this is only a proposal. However, employers who are affected by this should pay attention. If the rules are finalized as proposed, this could significantly reduce the notice burden for those employers. It would also simplify disclosures for plans that are offered, or administered, by insurance carriers who offer policies through the ACA exchanges/marketplaces. HUB will continue to monitor these developments and provide updates as appropriate.

Additional information about the proposal is available from this HHS fact sheet.

If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.

NOTICE OF DISCLAIMER

The information herein is intended to be educational only and is based on information that is generally available. HUB International makes no representation or warranty as to its accuracy and is not obligated to update the information should it change in the future. The information is not intended to be legal or tax advice. Consult your attorney and/or professional advisor as to your organization’s specific circumstances and legal, tax or other requirements.