Today s webinar will begin shortly. We are waiting for attendees to log on.

Transcription

1 Today s webinar will begin shortly. We are waiting for attendees to log on. Presented by: Lorie Maring Phone: (404) lmaring@ Please remember, employment law compliance depends on multiple factors particularly those unique to each employer s circumstances. Numerous laws, regulations, interpretations, administrative rulings, court decisions, and other authorities must be specifically evaluated in applying the topics covered by this webinar. The webinar is intended for general-information purposes only. It is not a comprehensive or all-inclusive explanation of the topics or concepts covered by the webinar.

2 The ACA s Newest Nondiscrimination Rules and How They Apply to Group Health Plans Presented by: Lorie Maring Phone: (404) lmaring@

3 Background of Section 1557 Today s Agenda Which employer s groups health plans are affected? What is federal financial assistance? When are self-funded health plans affected? Are plans required to cover sex reassignment surgeries/medications? Does a self-funded health plan s TPA have an obligation to report non-conforming health plan designs? What is the obligation under limited English proficiency rules? Additional tips

4 Overview of Section 1557 Purpose: Prohibit Discrimination of vulnerable populations to help advance equity and reduce health disparities in the health care context Builds on existing protections in: Title VI of the Civil Rights Act Race, color, national origin Title IX of the Education Amendments Act of 1972 Sex Age Discrimination Act of 1974 Age Section 504 of the Rehabilitation Act of 1973 Disability

5 Overview of Section 1557 First Federal Civil Rights Law to prohibit discrimination on basis of sex in all health programs The final rule defines the sex protections in Section 1557 to include discrimination against LGBT people, including individuals who are transgender; lesbian, gay, and bisexual (LGB); gender-nonconforming and non-binary; or intersex. No Religious Exemption Faith based organizations lobbied for relief from certain provisions of Section 1557 primarily relating to gender transition services No exemption provided in final regulations HHS notes that other protections for faith based organizations apply: Provider conscience laws Religious Freedom Restoration Act (Hobby Lobby case) ACA relief relating to abortion and contraception

6 Overview of Section 1557 EFFECTIVE DATE Section 1557 in effect since enactment of ACA in 2010 Actively enforced Final Regulations Effective Generally - July 18, 2016 First PY beginning on or after 1/1/2017 if require a change in health insurance or GHP benefit design Covered Entities must comply with notice and tagline requirements within 90 days of 7/18/2016 (some relief for exhausting current stock of publications)

7 How are Section 1557 Violations Enforced? Section 1557 enforced by Office of Civil Rights (OCR) at the Department of Health and Human Services Generally enforced through existing enforcement mechanisms under the federal civil rights laws private causes of action for enforcement and compensatory damages Covered Entities may not require administrative exhaustion of remedies under CE s grievance procedures

8 Who Must Comply? Covered Entities - Any health program or activity, any part of which receives Federal financial assistance from HHS for any purpose: Health insurance insurers Group health plans Employers sponsoring group health plans Third party administrative services of a covered entity that receives federal financial assistance Entities of all sizes must comply. But if the entity has 15 or more employees, they are required to have grievance procedures and a compliance coordinator.

9 What does federal financial assistance mean? Federal financial Assistance (FFA) includes: Receiving federal premium or cost-sharing subsidies for individuals receiving coverage through the federal or state administered marketplace, Medicare Advantage or Medicaid All tax credits under the ACA Any grant, loan, credit, subsidy, contract (other than procurement contracts), or any other arrangement where the federal government provides funds, services of federal personnel, or real or personal property. Student health plans if the educational institution receives federal financial assistance Most health insurance issuers receive FFA.

10 Employers Receiving Federal Financial Assistance If employer is principally engaged in providing or administering health insurance coverage (hospital participating in Medicare, carrier in marketplace) Comply with Section 1557 in operations and for its own GHP whether insured or self-insured If employer not principally engaged in above functions, but receives FFA for a health program or activity (e.g. a university receiving funds for a cancer research project) Must comply with Section 1557 for health benefits (self-funded or insured) for employees in that department, but not for health benefits it provides to other employees) If an employer receives HHS funds in connection with GHP (e.g. retiree drug subsidy, CHIP premiums) unclear how section 1557 applies Employer or GHP or both?

11 Who is responsible for 1557 compliance? Some self-insured private sector health plans will not be subject to the rule Self-insured plans TPAs generally will not be responsible for benefit designs of selfinsured plans. The self-insured group health plan would be. TPAs could be held liable for discriminatory claim denials. If a complaint is filed with the OCR, it will determine whether the TPA or the employer is responsible for the alleged discrimination. Just because a TPA is covered, does not mean that an employer who utilizes their services will be.

12 HHS and EEOC Enforcement The OCR is part of the HHS. It will determine who was responsible for making the discriminatory decision. If the TPA is ultimately responsible and a covered entity, the OCR will proceed against it. With a self-insured plan, if the employer is ultimately responsible and a covered entity, then the OCR will proceed. However, if the employer or group health plan is not a covered entity, the OCR does not have jurisdiction. Instead the complaint will be referred to the EEOC Title VII for transgender complaints. Could TPAs be required to report non-compliant plan designs?

13 Employee Health Benefit Programs The rule generally does not apply to the employer-employee relationship. Exceptions: If the employer is principally engaged in providing or administering health services, health insurance coverage or health coverage. If the employer receives FFA, which has the primary purpose of funding an employee health benefit program. If the employer operates employee health benefit programs and receives FFA. For example, if a pharmacy is within a retail store, the pharmacy employees would have to be covered but not all retail store employees.

14 Basic Requirements of Section 1557 CEs may not discriminate based on an individual s race, color, national origin, sex, age, or disability. This includes Denying or limiting health coverage Denying a claim Employing discriminatory marketing or benefit design Imposing additional cost sharing Refusing to issue or renew a policy or health coverage Discrimination will be determined on a case by case basis Final Rule contains limited guidance on what constitutes discrimination

15 Sex Discrimination Prohibited Sex Discrimination under Section 1557 includes discrimination based on: An individual s sex Pregnancy, childbirth and related medical conditions Gender identity Sex stereotyping

16 Sex Discrimination Prohibited Women must be treated equally with men Sex specific health programs or activities only permissible if CE can demonstrate exceedingly persuasive justification. OCR declined to resolve whether discrimination on basis of sexual orientation alone is a form of sex discrimination under Section 1557 Will monitor complaints and HHS supports prohibiting discrimination based on sexual orientation as a matter of policy Significant impact is with respect to treatment of transgender services/benefits

17 Transgender Services Impact Individuals cannot be denied health care or health coverage based on their sex, including their gender identity; Individuals must be treated consistently with their gender identity; Sex-specific health care cannot be denied or limited solely because the person seeking care identifies as belonging to another gender; and Explicit categorical exclusions for all health services related to gender transition are facially discriminatory.

18 Transgender Services Impact Individuals must have access to health facilities and programs consistent with their gender identity. Room assignments and housing Restrooms Labeling hospital bracelets

19 Transgender Services Impact A health plan that does not provide coverage of sex-specific services to a transgender person whose biological sex is not consistent with that service Example, prostate exams do not be covered for a transgender male who does not have a prostate. On the other hand, sex-specific health care cannot be denied or limited because the person seeking the services identifies as belonging to another gender. Example, a health care provider would not be able to deny an individual treatment for ovarian cancer because the individual identifies as a transgender male.

20 Are CEs required to cover gender transition? Health plans cannot categorically or automatically exclude the coverage of gender transition. The rule does not explicitly require the coverage of any particular service to treat gender dysphoria, gender identity disorder, or an individual that is transitioning genders, and the rule allows plans to deny non-medically necessary services. Coverage of some, but not all transgender services may be permissible Further guidance needed employers should proceed with caution and advice of legal counsel if excluding gender reassignment

21 Communication and Accessibility Protections for Individuals with Disabilities Ensure communications with individuals with disabilities are as effective as communication with others. Provide auxiliary aids and services (alternative formats and sign language interpreters) if needed Make all programs and activities provided through electronic and information technology accessible unless undue financial burden or resulting in a fundamental alteration of program or activity ADA physical accessibility requirements incorporated No marketing practices or benefit designs discriminating based on disability

22 Communication and Accessibility Protections for Individuals with Disabilities NOTICE REQUIREMENT: CEs must notify beneficiaries, enrollees, applicants, and members of the public of: The availability of appropriate auxiliary aids and services for free Language assistance services How to obtain aids and services Who, if anyone, is responsible for providing aids and services Availability of a grievance procedure How to file a discrimination complaint with the OCR

23 Access Rules for Individuals with Limited English Proficiency Prohibition on national origin discrimination requires meaningful access to services under CEs health related activities or programs Individual with limited English proficiency is a person whose primary language for communication is other than English and who has limited ability to read, write, speak or understand English Reasonable steps to accommodate may include foreign language assistance services Oral language assistance Written translation Rule is flexible and context-specific Nature of importance of program and whether CE has developed and implemented a an effective language access plan

24 Notice Rules for Individuals with Limited English Proficiency Must post notice of an individual s rights to communication assistance CEs must include taglines in communications in the top 15 languages in each state regarding availability of language assistance (for smaller communications (postcards) top 2 languages) nondiscrimination and taglines to notify participants of language service availability The OCR has sample notices, sample taglines, and nondiscrimination statements. CMS plans to amend rules to also include taglines on web content.

25 Next Steps For Employers Determine whether employer is a CE Does employer receive FFA from HHS for any reason? Ensure benefit design decisions in role as plan settlor (not CE) are properly documented (self-funded) If employer is a CE, ensure that meeting additional requirements of Section 1557 unrelated to GHP For GHPs Determine whether a CE Coordinate with TPA/carrier to allocate responsibility for and ensure compliance with notice and language access requirements Review plan administration to ensure not discriminatory

26 Continuing Education Credit HRCI SHRM

27 Final Questions HRCI SHRM Presented by: Lorie Maring Phone: (404)

28 Thank You Presented by: Lorie Maring Phone: (404)