Health Care Nondiscrimination Notice Requirement Is Going Away

On Aug. 18, 2020, the Department of Health and Human Services' (HHS's) finalized changes to the Affordable Care Act's Section 1557 nondiscrimination rules will take effect, removing requirements that employers issue health care nondiscrimination statements to employees and add health care nondiscrimination taglines to employee communications.

Prior to the changes under a final rule HHS published on June 19, employers had to ensure that they, along with their insurers (for fully insured plans) or third-party administrators (for self-insured plans), abided by a 2016 HHS rule requiring employer-sponsored plans to:

• Create and maintain a notice of health care nondiscrimination.
  

• Include it in "significant communications" along with taglines in 15 different languages advising individuals of the availability of language assistance.
  

• Include similar taglines for other communications but only in three different languages.

These notices are required until Aug. 18. Afterward, covered entities will still be obligated to take reasonable steps to ensure that employees with limited English proficiency have access to information about health care nondiscrimination policies.

"Now more than ever, Americans do not want billions of dollars in ineffective regulatory burdens raising the costs of their health care," said Roger Severino, director of the Office for Civil Rights at HHS.

[SHRM members-only toolkit: Complying with and Leveraging the Affordable Care Act]

Less Paperwork and Lower Costs

"The final rule eliminated the requirement to post the discrimination notice and add taglines," said John Kirk, an attorney at law firm Graydon in Cincinnati. "The final rule also eliminated the requirement that the discrimination notice and taglines be included with all significant publications sent by the organization. This change will be a significant cost and administrative timesaver for most entities."

Employers offering employee benefit plans that were subject to the prior 2016 rule "should review any notice and disclosure obligations and may begin revising their disclosures to remove the nondiscrimination statement and required taglines," Kirk advised.

"This is welcome news for employers that were required to create and maintain these complicated notices," according to compliance firm HUB International. "In the preamble to the new final rules, HHS stated that the notices were costing employers and other entities hundreds of millions to billions of dollars, but were not, in HHS's view, providing meaningful additional help to individuals."

HUB noted that "the onerous notice requirement is gone, but nondiscrimination rules still generally apply," prohibiting discrimination in health care on the basis of race, color, national origin, sex, age or disability.

Overshadowed by Transgender Controversy

Most coverage of the HHS final rule focused on its controversial rollback of anti-discrimination protections based on gender identity, which overshadowed the rule's repeal of the notice and tagline provisions under the 2016 regulation.

A coalition of LGBTQ groups and health care providers are suing the Trump administration, alleging the new HHS rule conflicts with the Supreme Court's June 15 decision in Bostock v. Clayton County, Ga., which found that the prohibition against sex discrimination in the workplace under Title VII of the Civil Rights Act covers sexual orientation and gender identity. Also bringing suit is a coalition of 23 Democratic state attorneys general.