Compliance Alert: Employer Sponsored, Self-funded Health Plan

Effective as of the first day of the plan year commencing on or after January 1, 2017, employer sponsored, self-insured health plans may be subject to the civil rights provision of Section 1557 of the Affordable Care Act, which prohibits health plans from denying or limiting health coverage, denying a claim, employing discriminatory marketing or benefit designs and imposing additional cost-sharing on the basis of an individual’s race, color, national origin, sex, age, or disability.

WHO MUST COMPLY?

Section 1557 applies to employer sponsored, self-insured health plans if the employer: (1) receives federal financial assistance, a primary objective of which is to fund the employee health benefit program; or (2) operates a health program or activity, which is not an employee health benefit program, that receives federal financial assistance. The term “federal financial assistance” includes federal grants, property, Medicaid, Medicare (Parts A, C, and D), and premium tax credits and cost-sharing subsidies from the Marketplace.

COMPLIANCE HIGHLIGHTS:

– Review Plan and Benefit Design

o Many plans deny coverage for any services related to gender transition, such as treatment for gender dysphoria. HHS has determined that such a categorical exclusion is discriminatory. If a plan intends to cover corrective surgery and related procedures for other purposes (e.g., corrective surgery for child born with under-developed genitalia or a hysterectomy for cancer treatment), it would be difficult to exclude coverage for such services for a transgender individual with gender dysphoria.
o Plans cannot contain exclusions or limitations for sex-specific services that discriminate against transgender individuals. Such discriminatory provisions may impermissibly discriminate on the basis of sex. For example, if a transgender woman needs a prostate exam, a plan could not deny that service based on the individual identifying as a woman.

– Post and Publish Notifications and Taglines

o You are required to post a non-discrimination notice (in English) and limited English proficiency taglines (in the top 15 languages spoken in your state) on your employee benefit website and other conspicuous locations within the facility where health plan information is posted or provided to employees;
o You are required to include a non-discrimination notice (in English) and limited English proficiency taglines (in the top 15 languages spoken in your state) in all large publications concerning the health plan; and
o You are required to include a non-discrimination notice (in English) and limited English proficiency taglines (in the top 2 languages spoken in your state) in all small publications concerning the health plan.

– Grievance Procedure. For employers with 15+ employees:

o You are required to adopt a grievance procedure for monitoring and enforcing compliance with Section 1557; and
o You are required to designate an individual to hear and adjudicate all grievances regarding alleged Section 1557 violations.

DO YOU NEED COMPLIANCE ASSISTANCE?

For additional information or assistance with complying with the Final Rule implementing Section 1557 of the Affordable Care Act, please contact Anne Cramer at acramer@primmer.com, Shireen Hart at shart@primmer.com or Linda Peruzzi at lperuzzi@primmer.com for further information or guidance.