ERIC Provides Guidance to the U.S. Department of Health and Human Services

The ERISA Industry Committee submits comments on proposed nondiscrimination rule

For Immediate Release

Washington, DC – The ERISA Industry Committee (ERIC), who represents large employers that sponsor employee benefit plans, submitted comments to the U.S. Department of Health and Human Services (HHS) on its proposed rule interpreting Nondiscrimination in Health Programs and Activities (Section 1557 of the Affordable Care Act).

This section of the ACA prohibits a health program or activity that receives federal financial assistance from discriminating on the basis of race, color, national origin, sex, age, or disability. The nondiscrimination rule extends to all health programs and activities, any part of which receives federal financial assistance administered by HHS, as well as health programs and activities administered by the Department.

The proposed regulation, however, far exceeds its statutory mandate, whether by design or inadvertently. It imposes costly new requirements on employer group health plans that do not receive any form of federal financial assistance and that –under any reasonable interpretation of the governing statute – were not intended to be subject to these rules. In addition, some of the new rules are inconsistent with, and contradictory to, existing statutory and regulatory requirements that group health plans must satisfy.

“ERIC members –some of the country’s largest employers – and the plans they sponsor, are already subject to a complex web of federal statutes and regulations that prohibit all of these forms of discrimination, and more, and they have adopted non-discrimination policies that are generally far more expansive than this new regulation would require. The result is that their group health plans are broadly inclusive and do not discriminate against individuals on any of the prohibited grounds.” said Gretchen Young, Senior Vice President of Health Policy, ERIC. “We are concerned that the Department’s rule does not adequately reflect the reality of how self-funded group health plans are designed and administered. The rule disrupts the administration of plans and increases health care costs for employers and employees alike, without adding any additional protection against discrimination.”

In its letter to the U.S. Department of Health and Human Services, ERIC states that:

  • The nondiscrimination rule should not apply to a group health plan merely because the plan’s third party administrator receives federal financial assistance.
  • The nondiscrimination rule should not apply to a legal entity that is separate from the entity that receives federal financial assistance.
  • If an employer is not in the business of providing health coverage, the nondiscrimination rule should apply only to the specific employee health benefit program with respect to which the employer receives federal financial assistance, and not to other health benefits provided by the same employer or offered under the same group health plan.
  • If an employer is not in the business of providing health coverage, the nondiscrimination rule should not apply to the employer’s group health plan solely because the employer receives federal financial assistance with respect to other health-related activities.
  • Employer group health plans should not be subject to additional language-assistance requirements for disabled individuals or individuals with limited English proficiency, because these additional requirements are unnecessary and redundant.
  • The rule should not apply to any employer group health plan or sponsoring employer any earlier than the first plan year beginning a year after the final regulation is published in the Federal Register.

You can read ERIC’s letter to the U.S. Department of Health and Human Services, here.


All media inquiries to The ERISA Industry Committee should be directed to:

Kelly Broadway, 202.627.1918,

About the ERISA Industry Committee
ERIC helps America’s largest employers stay ahead of employee benefit policy. ERIC member companies are leaders in every sector of the economy, and we represent them in their capacity as sponsors of employee benefit plans for their own workforce. Only ERIC provides the combination of intel, expertise, collaboration, and lobbying that exclusively serves the interests of large employers who provide health, retirement, and compensation benefits to their nationwide workforce.