Employer plans may face huge non-English notice hurdle

Employers, insurers and benefits advisors are still trying to figure out the new federal health anti-discrimination regulations mean, and who will have to comply with the new requirements.

Members of the benefits community are asking benefits lawyers for advice. Edward Leeds, counsel in the Philadelphia office of Ballard Spahr LLP, is telling clients that interpreting the regulations will take time.

“I have thoughts,” Leeds said. “I don’t necessarily have complete answers.

Drafters of the Patient Protection and Affordable Care Act of 2010 (PPACA) put a health nondiscrimination provision in Section 1557. The provision prohibits discrimination on the basis of race, color, national origin, sex, age or disability.

In August 2015, 14 House Democrats complained about the Obama administration’s apparent failure to write the regulations needed to implement the nondiscrimination provision.

The U.S. Department of Health and Human Services’s Office for Civil Rights and the HHS Office of the Secretary published draft Section 1557 regulations in September 2015. They released a final rule in May.

Read: Nondiscrimination regs cover TPAs, dental and more

The provisions that attracted the most attention bans discrimination against people who have gender dysphoria or want help paying for gender transition services. In the final rule, for example, HHS does not necessarily prohibit plan limits on coverage for hysterectomies associated with gender transitions. But, if a plan banned coverage for hysterectomies used to treat gender dysphoria, HHS would look at how the plan covered hysterectomies in other circumstances, officials say in the introduction to the final rule.

In the final rule, HHS also explicitly applies federal nondiscrimination rules to dental coverage, disability coverage, critical illness insurance, long-term care insurance and other health products other than major medical coverage. Federal agencies have often “excepted” those products from the Health Insurance Portability and Accountability Act and PPACA rules that apply to major medical coverage.

HHS also includes a provision describing the kind of “effective language access plan” that a health insurer or health plan must have to serve an individual with limited English proficiency.

The language access plan provision “is a significant set of rules,” Leeds said.

For more about what Leeds is thinking about the Section 1557 final rule, read on:

Murky water

1. Leeds does not necessarily know which entities will have to meet the requirements.

In the final rule and its preamble, HHS officials say the Section 1557 regulations have no effect on the Medicare Part B physician and outpatient services plan. The definition of “federal financial assistance” used in the final rule and other HHS civil rights efforts excludes Medicare Part B, officials say.

In an impact analysis, officials show how the requirements might affect health insurers that sell coverage through the PPACA public health insurance exchange system. Officials do not provide an impact analysis for any other type of insurer.

“The fact is that they were not clear about the extent of the scope to which Medicare is affected,” Leeds said.

In some parts of the final rule and its preambles officials write as if the nondiscrimination applies to a wide range of employers. In other parts, officials seem to say that the rule will apply directly to employer plan sponsors only if the employers are involved with health care programs that receive federal assistance.

If, for example, an ordinary employer outside of the health care industry has a commercial health plan for active employees, and that employer also uses a Medicare Advantage group plan to cover retirees, it’s possible that the Section 1557 requirements could apply to the active employee plan, Leeds said.

eyeglasses

2. Leeds is not sure whether the requirements will really lead to major changes for providers of dental coverage, vision coverage, disability coverage and other excepted benefits.

HHS officials may have raised some eyebrows simply by stating explicitly that the final rule applies to excepted benefits.

3. Leeds suspects that meeting the new language access requirements could be much more of a headache than dealing with the current Summary of Benefits and Coverage language access requirements.

In the new final rule, HHS requires any entities that are covered to include Section 1557 nondiscrimination notices in long communications with consumers.

HHS is supposed to develop an English-language nondiscrimination notice, and translated versions of the notice in at least 15 other languages.

A covered entity is supposed to post “tagline links” written in each of 15 non-English languages on the entity’s home page and in connection with long publications. The link is supposed to take a consumer to a full-text tagline that explains how a consumer can get language assistance services.

A brief home-page tagline could, for example, take a user to a link to a website aimed at speakers of Haitian Creole.

When a community sends out short communications, it can include just two non-English taglines.

Whether a covered entity posts 15 taglines or two, the languages used are supposed to be based on the number of people in a state who speak the language. A covered entity can’t simply post taglines in Chinese and French because the owner happens to know Chinese and French.

PPACA and PPACA regulations already require plans and insurers to provide language assistance services in connection with Summary of Benefits and Coverage notices, but the SBC language access requirement is a relatively limited requirement, Leeds said.

The Section 1557 language access standards appear to create an ongoing requirement for plans to post non-English language services taglines, Leeds said.

“That’s a much bigger scope of requirement,” Leeds said.