Confusion. Uncertainty. Such is the entirely predictable result of the Trump administration’s latest ignominy. In a final rule published last month, the administration wiped out important regulations that help protect people from discrimination in health programs or activities that receive federal funding. The regulations implement Section 1557, the Affordable Care Act’s key nondiscrimination provision.
Not surprisingly, the administration targeted key populations who have long experienced discrimination in health care settings, including LGBTQ+ persons, people with chronic illnesses and disabilities, and those with limited English proficiency.
Not surprisingly, the administration targeted key populations who have long experienced discrimination in health care settings, including LGBTQ+ persons, people with chronic illnesses and disabilities, and those with limited English proficiency. The new regulations also exempt health insurance companies and most private health plans from Section 1557’s nondiscrimination protections. (For more information on the final rule, check out NHeLP’s overview – HHS Eliminates or Weakens Regulatory Protections Against Discrimination in Health Care).
In the wake of the new rule, some health insurer groups released statements of support for nondiscrimination. Check out the America’s Health Insurance Plans’ (AHIP) statement here, and the Blue Cross and Blue Shield Association’s statement here. Their expressions of support for nondiscrimination in health care are certainly welcome, and prudent too.
Health insurance companies and plans should not rely on the Trump administration’s latest regulatory rollback exempting them from nondiscrimination requirements. Revising or repealing regulations does not change the law, and Section 1557’s protections remain in effect.
Multiple lawsuits have already been filed asking courts to overturn the administration’s rule revisions (see here, here, here and here) and more legal challenges are expected in the coming weeks. These challenges will likely meet with some success since courts have previously upheld Section 1557 protections, contrary to the administration’s position.
For example, in Flack v. Wisconsin Department of Social Services (where NHeLP served as co-counsel) the federal district court ruled that Section 1557 protections against sex discrimination include gender identity, and invalidated Medicaid coverage exclusions for gender affirming care. The Flack decision, based upon the court’s plain reading of the statute, does not rely on the Trump administration’s interpretation excluding gender identity from sex discrimination.
Last month, the Supreme Court also rejected the administration’s position, concluding in Bostock that federal law prohibits employment discrimination based on someone’s gender identity and sexual orientation. (The Bostock ruling is based on a law similar to sex discrimination protections in Section 1557).
In the final rule, the administration also eliminates regulations prohibiting discriminatory plan benefit design and marketing, and exempts most insurance companies and private health plans from Section 1557 nondiscrimination requirements. These protections are particularly important for persons with disabilities and those with chronic conditions.
Earlier this month, the Ninth Circuit Court of Appeals decided an important case addressing the scope and plain meaning of Section 1557 – ““The primary issue before us is whether the ACA’s nondiscrimination mandate imposes any constraints on a health insurer’s selection of plan benefits. We hold that it does.” (Schmitt v. Kaiser Foundation Health Plan of Washington; read NHeLP’s amicus brief here).
Regulations serve important functions, providing greater clarity on what a statute means and how it works. However, under the Trump administration, this is no longer true. This administration’s rollback of Section 1557 regulations creates uncertainty and confusion about what the law means, and to whom it applies.
Yet these changes are contrary to the design, intent, and plain meaning of the ACA’s nondiscrimination protections. Health insurance companies, providers, and others should be wary of relying on the administration’s regulatory rollback. Not only is it illegal, but as AHIP rightly noted in its statement – “Discrimination is wrong – period.”
For more information on the final rule, check out NHeLP’s overview—HHS Eliminates or Weakens Regulatory Protections Against Discrimination in Health Care.
And see the rest of our blogs in our series on Section 1557:
- Como se dice “discrimination” en Espanol?
- Trump Administration Rolls Back Important Health Care Protection Roll Back for People with Disabilities and Chronic Health Conditions
- Fighting Fire with Lighter Fluid: Trump Administration Rule Incites Health Care Discrimination and Jeopardizes Reproductive Health
- Health Insurers Should Be Wary of Trump Regulatory Rollback