You may have heard or seen news flashes about the newly proposed ACA discrimination regulations. Many in the benefit world have been waiting (anxiously) for regulations on the ACA-imposed non-discrimination testing requirements that prohibit fully insured plans from discriminating in favor of Highly Compensated Employees. The newly released proposed regulations do not address that specific requirement. Instead, they address a completely different ACA requirement (the civil rights provision), rather than the prohibition against plan discrimination.
The civil rights provision of the Affordable Care Act (Section 1557) prohibits discrimination on the grounds of race, color, national origin, sex, age, or disability. Specifically it provides that:
Individuals cannot be excluded from participation, denied the benefits of, or subjected to discrimination under any health program or activity which receives federal financial assistance, on the basis of race, color, national origin, sex, age, or disability.
These proposed regulations apply to a broad array of providers, employers, and facilities including State-Based Marketplaces as well as Federally-Facilitated Marketplaces.
In a Nutshell
These newly released regulations are an important compliance release under the ACA as they provide key guidance on how civil rights (as we generally know them) must be extended to health plans and health providers. However, they are not the plan level discrimination testing regulations that many in the employee benefits world are waiting for. For those regs, we must continue to wait.
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