On May 18, 2016, the Department of Health and Human Services (“HHS”) published a final rule to implement Section 1557 of the Affordable Care Act (“ACA”), which prohibits discrimination in health coverage and care based on race, color, national origin, age, disability and sex. These provisions incorporate existing federal non-discrimination law and policy and also contain some new protections. Key provisions include:
- Extending protections against sex discrimination to health coverage and care for the first time, including gender identity discrimination within the definition of sex discrimination;
- Codifying long-standing guidance regarding meaningful access for individuals with Limited English Proficiency (“LEP”), including the provision of free, accurate and timely language assistance services;
- Incorporating existing law that requires reasonable modifications, effective communication, and readily accessible buildings and information technology to avoid disability-based discrimination; and
- Prohibiting discriminatory health insurance benefit designs and including specific coverage protections for transgender individuals.
Who Must Comply?
Covered entities subject to these rules include:
- Group health plans that accept federal funding from HHS;
- Insurers that participate in the Marketplace/state exchanges or otherwise receive federal funding and their related third-party administration business;
- Employers whose primary business is related to health care; and
- State or local governments that accept federal funding from HHS for services such as Medicaid or community health programs, but only for those programs.
Employers are covered entities if they accept the Retiree Drug Subsidy (“RDS”) from the Centers for Medicare & Medicaid Services (“CMS”) or receive funds from HHS, including for self-insured Employer Group Waiver Plan (“EGWP”), Medicare Advantage or Medicare Prescription Drug plans.
Language Services (“LEP”)
The Limited English Proficiency (“LEP”) services may be the biggest challenge in these rules for some covered entities. The final rule requires a covered entity to provide language assistance services free of charge, and the services must be accurate, timely, and protect the privacy of LEP individuals. The final rule, as designed by the Office of Civil Rights (“OCR”) requires that a covered entity offer qualified oral interpreters or written translations to LEP individuals, if these services would reasonably provide meaningful access to that individual.
Covered entities must also post notices of nondiscrimination and taglines alerting LEP individuals that language assistance services are available. The final rule uses a state threshold, requiring these notices be posted in at least the top 15 non-English languages spoken in the state in which the entity is located or does business.
The number and type of documents that may need translated has not been defined by HHS (open enrollment materials, SPDs, etc.) It is reasonable to assume that at a minimum, the Summary of Benefits and Coverage (“SBC”) would be deemed necessary to provide in translated versions.
The provisions of the final rule generally will be effective on July 18, 2016. If provisions of the final rule require changes in health insurance or group health benefit design, the rule is effective on the first day of the first plan year beginning on or after January 1, 2017.
Covered entities need to comply with the notice and tagline requirements within 90 days of the effective date (October 16, 2016).
We Have The Solution
Wilkinson Benefit Consultants (“WBC”) has created a turnkey solution for any plan sponsor that would like assistance in meeting these ACA Section 1557-related compliance requirements. Services include:
- Support for 200+ languages
- Document translation and interpreter experts with healthcare subject matter expertise
- Advanced written and verbal fluency in both English and their native language
- U.S. based translators and interpreters
- HIPAA certified and bound by strict confidentiality and privacy agreements
- Robust encrypted network, current certificate of PCI DSS compliance and are Safe Harbor certified
- “Live” video conferencing for enhanced interpretation needs
- LEP testing
- 4-Step assessment for Individualized Covered Entity compliance to determine level of LEP services
- 5-step written implementation plan to show documentation of a compliance program in the event of an OCR review.
If you would like to discuss these or other WBC services, please contact us for a free, no-obligation consultation (www.wbcbaltimore.com).
Please note, this description is a brief summary and overview of some of the notable provisions in the ACA Section 1557 rule as it may pertain to covered entities receiving retiree drug subsidies. Plan sponsors should consult with their own legal counsel to determine whether these provisions are applicable to their plan.