Seyfarth Synopsis: Certain senior care providers like nursing homes and home health agencies will need to ensure compliance with new regulations issued by the Department of Health and Human Services (HHS), which prohibit discrimination in the operation of health benefits and require technology that is accessible.

On July 18, 2016, the final Department of Health and Human Services (HHS) regulations under Section 1557 of the Affordable Care Act (ACA) officially went into effect. Covered entities may include hospitals, health clinics, health insurance issuers, state Medicaid agencies, community health centers, physician’s practices and home health care agencies. The rules also apply to employee health benefits of certain employers that receive federal financial assistance and are principally engaged in health care, like nursing homes. Only the employees who work for these health programs would be covered by the rule. Covered entities may not discriminate in the operation of their employee health benefit programs. The nondiscrimination provision applies to all health insurance issuers that are recipients of Federal financial assistance, which includes premium tax credits and cost sharing reductions associated with coverage offered through the Health Insurance Marketplaces or Medicare Parts A, C and D payments. Despite the fact that these rules are final, many uncertainties remain.

With respect to employee health benefit programs, not all self-insured group health plans are subject to the rule. As further discussed in our comprehensive alert on this issue, the nondiscrimination provision extends to employers who as plan sponsors receive federal financial assistance to fund their employee health benefit programs; however, an employer that otherwise receives federal financial assistance does not become subject to the rule simply by offering employee health benefits. Employee health benefit programs include employer-sponsored wellness programs, health clinics and long-term care coverage.

The new regulations also impose accessibility technology requirements, meaning that covered entities providing health care programs and services must have accessible electronic information technology, including accessible websites. Section 1557 of the ACA requires covered entities to ensure that health programs and services provided through Electronic Information Technology be accessible to individuals with disabilities unless doing so would result in undue financial and administrative burdens (in which case the entity must provide the information in an equally accessible alternative format) or a fundamental alteration in the nature of the health program or activity.

Many uncertainties remain, so time will tell how the regulations are applied. The crucial steps are to determine whether entities are covered and if so, determine if the covered group health plan requires benefit plan design changes.