Final Regulations Issued for Non-Discrimination in Health Programs

Section 1557 of the Patient Protection and Affordable Care Act (ACA) allows the Secretary of Health and Human Services (HHS) to issue regulations pertaining to non-discrimination. Earlier in May of 2016, the Secretary of HHS issued such regulations, which bans the denial of healthcare or health coverage to individuals on the basis of race, color, national origin, sex, age, or disability.

This final rule, the first federal civil rights law that broadly prohibits discrimination on the basis of sex, applies to any federally funded health plan. Although the law prohibits discrimination based upon sex, HHS failed to fully define certain issues, such as whether this covers discrimination based upon sexual orientation. However, HHS’s Office for Civil Rights (OCR), the agency tasked with enforcement, has stated an intention to review all claims in this area to determine whether the discrimination can be addressed under the regulations.

This rule will become effective on July 18, 2016, and will be enforced by OCR. Although OCR is tasked as a primary regulator, compliance burdens will fall to all entities covered by the new regulations, as well as individual citizens because the regulations include a private right of action for violations. Further details can be found at the following link. https://federalregister.gov/a/2016-11458

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IRS issues final regulations on employer sponsored health insurance

In December of 2015, the Internal Revenue Service (IRS) issued final regulations that addressed some of the questions pertaining to whether employer sponsored health insurance meets the Patient Protection and Affordable Care Act minimum value requirements.  Amongst a variety of miscellaneous items pertaining to minimum value, the final regulations clarify the impact of a health reimbursement arrangement (HRA) on affordability. The regulations also clarify some of the rules regarding eligibility for the health insurance premium tax credit.

Under the final regulations, the new amounts made available by an employer to an employee in a HRA that can be used to pay health insurance premiums, when the employer also offers qualifying health coverage, will be counted towards affordability. Similarly, if the new amounts are available to an employee in a HRA integrated with qualified employer coverage, and the new amount can only be used to reduce cost-sharing, that new amount will be counted for minimum value purposes.

The health insurance premium tax credit had rules finalized in the same regulations. One rule includes the eligibility of a household that has income from a child. The premium tax credit is based on household income and when a parent includes a child’s income on their income tax return for tax credit eligibility purposes, the amount used is the child’s modified adjusted gross income, not the gross income reported on the child’s tax return.

The final regulations also addressed the impact of wellness incentives on the health insurance premium tax credit. The regulations clarify that wellness incentives that reduce the cost of health insurance premiums to an employee will not be included in the calculation for minimum value or affordability, instead the regulations assume the employee will not qualify for the incentive. This rule has one exception, which is if the incentive is based on tobacco use. If so, the regulations assume that the employee will qualify for the incentive and the incentive can be used in the minimum value and affordability calculation. Thus, only tobacco use wellness incentives can be used in the minimum value and affordability calculation for purposes of premium tax credit eligibility.

Overall, a variety of miscellaneous rules regarding health insurance were finalized in the regulation. The entirety of the IRS regulation can be found at the following link: https://www.federalregister.gov/articles/2015/12/18/2015-31866/minimum-value-of-eligible-employer-sponsored-plans-and-other-rules-regarding-the-health-insurance

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New HIPAA Rule Allows Mental Health Reporting to Federal Firearm Background Check System

by Matthew J. Effken

The Department of Health and Human Services is relaxing Privacy Rule provisions of the Health Insurance Portability and Accountability Act (HIPAA) to allow some covered entities to notify the National Instant Criminal Background Check System (NICS) about individuals who are prohibited from having a firearm for mental health reasons.  The NICS is a national database maintained by the FBI and used to conduct background checks for gun purchases.  Under the new rule, the only information that can be reported is the minimum necessary to identify persons who have been involuntarily committed to a mental institution or otherwise have been determined by a lawful authority to be a danger to themselves or others or to lack the mental capacity to manage their own affairs.

The new rule applies only to those HIPAA covered entities with lawful authority to make mental health determinations that disqualify an individual from having a firearm, or are designated NICS reporting entities under state law.  The only information that can be reported is limited identifying information, not diagnostic or clinical information.  The new rule does not apply to most treating providers.  The rule will primarily impact state agencies, boards and commissions outside the court system in states that do not already require that such information be provided to the NICS.

The new rule is effective February 5, 2016.  The text of the rule is available at       https://federalregister.gov/a/2015-33181.

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