NADP Comments on Nondiscrimination Rule

November 2015

NADP Comments on Nondiscrimination Rule

NADP submitted a letter to Health and Human Services and its Office for Civil Rights (OCR) last week in response to a proposed rule on Nondiscrimination in Health Programs and Activities. The letter supports the overarching goal of the proposed rule to ensure equal access to health care and coverage for all individuals without discrimination on the basis of race, color, national origin, sex, age, or disability and provides recommendations on several proposed approaches to implement that goal, including the application of the rule extending beyond healthcare products, standards for dental benefits, and proposed timelines.

For more on the proposed rule, HHS provided a Fact Sheet and summary along with FAQs. In laying out recommendations, the NADP letter also includes more background on the proposed rule.

In brief, the proposed rule seeks to implement Section 1557 of the Affordable Care Act (ACA). As part of the rule, covered entities would be required to provide meaningful access to health programs for individuals with Limited English Proficiency (LEP) and ensure effective communications with individuals with disabilities. There are also standards for access to facilities and electronic and information technology. Covered entities, which could include insurers on Marketplaces, providers, nursing homes, labs, hospitals, Exchanges and state agencies, must also submit an assurance of compliance, designate an employee for compliance and adopt grievance procedures. A covered entity must post a notice in English regarding meaningful access and these procedures along with taglines in the top 15 languages spoken nationally regarding access to language assistance services.

NADP with volunteers from the Exchange Policy Workgroup (EPW), Government Relations Workgroup (GRW) and Commission on Advocacy Policy (CAP) developed specific recommendations, urging HHS to:

1. Revise the application of the rule to regulate only those health programs directly receiving federal financial assistance, not all operations of a covered entity. An insurer’s individual and group market business outside a Marketplace and other federal programs should be excluded from the purview of the regulation.
2. Re-evaluate Section 1557 and the proposed rule’s application to limited scope benefit plans given the longstanding regulatory differentiation between medical and dental benefits in many provisions of federal law.
3. Postpone the proposed effective date due to the extensive impacts of the regulations and consider a good faith safe harbor period, which would support covered entity and HHS communication and cooperation on issues that arise during implementation.
4. Allow covered entities to combine the required notice of the discrimination policy with other notices they are required to disseminate under Federal law.
5. For websites, allow covered entities to link to a URL and separate page to provide the notice and taglines. HHS could provide sample labels for the URL, including “Nondiscrimination/Accessibility” and “Information in other languages” as is done on healthcare.gov today.
6. Allow modifications to the notice for significant publications that lack adequate space (i.e. postcards, trifolds, etc.). Also, NADP supports the agency’s balanced approach in requiring covered entities to provide the notice in English due to space limitations online and in print.
7. Regarding the tagline requirement, allow covered entities three options: to list the taglines in the top 15 languages spoken nationally (as proposed), list the taglines in the top 15 languages by state or list taglines in languages spoken by at least 10 percent of a population residing in a serviced county.
8. Clarify that carriers offering “exchange-certified” dental policies off the Marketplace, in the private/commercial market, are not “covered entities” for the purposes of the rule.

Thanks to all Government Relations volunteers who helped develop the comments—your input is invaluable and appreciated!