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Department of Health and Human Services Issues Final Regulations Implementing the Nondiscrimination Provisions of the Affordable Care Act, Including Impact on Employee Health Benefit Programs

June 29, 2016

The Department of Health and Human Services’ (DHHS) Office of Civil Rights (OCR) recently issued a final rule implementing Section 1557 of the Patient Protection and Affordable Care Act. Section 1557 provides that no individual shall be discriminated against in any health program or activity receiving federal financial assistance on the basis of race, color, national origin, sex, age, and disability. This includes employers with employee health benefit programs (i.e., insurance plans, self-insured plans, employer-sponsored wellness programs, employer-provided health care clinics, and other long-term care coverage) that receive federal financial assistance in order to fund those programs. Health plans might receive federal financial assistance when, for example, a hospital sponsors an employee health benefit program and the hospital receives federal financial assistance or an employer purchases health insurance coverage for its employees on the ACA Marketplace. The final rule only applies when the health plan itself benefits from federal financial assistance. Employee health plans are not necessarily covered by the rule if the employer receives federal government funding for some other purpose than its health plan. 

The final rule will protect many workers with disabilities from discrimination by their employer-sponsored health plans, which will help ensure that they can access quality health care while working. For example, an employer-sponsored health plan would not be allowed to cover a certain type of surgery or transplant for some employees but not others. The final rule also explicitly incorporates Section 504’s ban against unnecessary segregation or differentiation based on disability, so that all health services would have to be provided in the most integrated setting possible. 

The final rule requires that health programs provide effective communication services to individuals with disabilities, including any auxiliary aids and services the person needs to be able to communicate effectively with their health care provider, regardless of disability. Finally, the rule requires that health care facilities must conform to the Americans with Disabilities Act (ADA) accessible design standards and that all electronic communications from health care providers must be accessible to persons with disabilities. 

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