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Department of Health and Human Services Releases Affordable Insurance Exchange Proposed Regulations

Client Alert | 1 min read | 07.12.11

A set of two proposed rules governing a host of requirements for implementation of Affordable Insurance Exchanges was released by the Department of Health & Human Services on July 11, 2011. The exchange program is a key component of the health law reforms promulgated under PPACA. Together, the new proposed rules provide guidance for the operation of the anticipated exchange program, which aims to create a competitive marketplace for information about and purchase of affordable private health insurance by individuals and small businesses. The exchange program is currently set to go into effect on January 1, 2014. The proposed regulations separately address a number of issues regarding program requirements and implementation:

  • The first proposed rule sets forth core federal standards for creation and operation of exchanges on a state-by-state basis. In addition, the proposed rule addresses requirements for employer participation in the Small Business Health Options Program (SHOP) and establishes certification requirements for health plan participation in the exchange program. As a general matter, the proposed rule aims to promote flexibility for states in choosing how to design and implement exchange programs under the regulations. Comments are due 75 days after publication in the Federal Register, which is slated for July 15.
  • The second proposed rule focuses on premium rate stabilization and sets forth standards for both states and health plans for achieving this goal. Specifically, the proposed state-based reinsurance program is designed to adjust for uncertain risks by making payments in the individual market where costs are particularly high. In addition, a temporary federal risk corridor program aims to limit both issuer losses and gains. Finally, a state-based risk adjustment program will make payment to health insurers with especially high-risk beneficiaries. Comments on this proposed rule are also due 75 days after publication in the Federal Register, set for July 15.

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Client Alert | 3 min read | 06.12.26

DOJ Guidance Backs Away From Disparate Impact Liability

On June 9, 2026, the U.S. Department of Justice (DOJ) issued a formal opinion concluding that the Equal Opportunity Employment Commission’s (EEOC) existing interpretations of Title VII of the Civil Rights Act of 1964 (Title VII) disparate-impact liability, including the Uniform Guidelines on Employee Selection Procedures (UGESP), are unconstitutional. According to the opinion, EEOC’s prior interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer’s likely intent, rather than treating disparate impact as an evidentiary mechanism to “smoke out” intentional discrimination. DOJ found that this approach functions as a “qualified racial-proportionality mandate” that places “a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” The opinion fulfills one mandate of Executive Order 14281, which rejected disparate-impact liability insofar as it “creates a near insurmountable presumption that unlawful discrimination exists wherever there are any differences in outcomes among different [demographic groups].”...

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