NHeLP Continues as a Friend of the Court to Advocate for Non-Discrimination in Health Care

NHeLP Continues as a Friend of the Court to Advocate for Non-Discrimination in Health Care
NHeLP Continues as a Friend of the Court to Advocate for Non-Discrimination in Health Care

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Last week, the National Health Law Program (NHeLP) and partners Disability Rights Education and Defense Fund (DREDF) and Justice in Aging filed an amicus brief, signed by 48 other legal services, disability, health, and civil rights organizations. Our brief supported the motion for partial summary judgment in a case filed by a group of 23 states, led by New York, to halt the Trump Administration’s recent Rule (2020 Revised Rule), which significantly rolled back non-discrimination protections in health care, from going into effect. The states’ suit is one of five filed so far to challenge the Trump Administration’s Revised Rule, as discussed below.

Our amicus focused on the history and purpose of the Affordable Care Act (ACA) as a statute to end discrimination in health care, not just in health care settings, but in health insurance and other health programs and activities. In addition, the brief discussed the potential for harm to the populations that Section 1557 of the ACA was designed to protect, including people with disabilities, older adults, limited English proficient (LEP) individuals, and LGBTQ+ people.

The Trump Administration filed a motion to stay summary judgment briefing, citing, among other arguments, the briefing required in the other cases challenging the rule, the lack of the full administrative record, and that it needed more time. The court ruled on September 22 that the states’ summary judgment motion was premature but said the states could refile later, and gave HHS more time to respond to their complaint.

We previously described what was in the prior non-discrimination rule and how the Trump Administration has rolled back those protections.

Our Amicus Brief Highlights the Harms from the 2020 Revised Rule

The 2020 Revised Rule sought to turn many of the ACA’s protections on their head, recreate gaps in health care protections, and return to a more regressive understanding of discrimination in health care. NHeLP’s brief illustrated the harms that would occur from the 2020 Revised Rule’s changes to:

  • narrow the scope of the entities covered by Section 1557, including to no longer cover most private insurance plans and other previously covered Federal programs;
  • remove of the notice, tagline, and effective communication requirements that impacts LEP individuals and people with disabilities;
  • incorporate religious and disability exemptions not found in the Section 1557 statute; and
  • and eliminate definitions that made clear that sex discrimination includes discrimination on the basis of sexual orientation and gender identity.

The brief also discussed HHS’s arbitrary reliance on an inappropriate calculation of the cost of providing notice and taglines, as well as the failure to properly estimate the benefits.

While the states’ summary judgment briefing largely focused on changes to sex discrimination, our amicus brief filled in the broader context. It highlighted comments submitted to HHS protesting the proposed rule changes to show the human impacts from the politically-motivated rule changes, and discussed how the new rule would particularly affect women, especially Black, Indigenous, and women of color; people with LEP; LGBTQ+ people; people with disabilities; and older adults.

Importantly, the limited scope of entities covered by Section 1557 meant that not only were people impacted by a reduction in the discrimination they were protected against, but now the universe of entities that were prohibited from discriminating against them was also far smaller.

As addressed in the brief, the populations impacted are the very populations many of the ACA’s changes were intended to protect. Therefore, the amicus provided important information to the court about the irreparable harm the rule would cause.

What’s Next?

On August 17 the District Court for the Eastern District of New York entered an injunction on behalf of two individual plaintiffs who challenged the 2020 Revised Rule. This injunction stopped the 2020 Revised Rule from redefining sex discrimination. Then, on September 2, the District Court for the District of Columbia entered an injunction on behalf of individuals and organizations, which stopped the 2020 Revised Rule’s elimination of the definition of discrimination on the basis of sex and incorporation of religious exemptions.

Here is the full list of pending cases challenging the 2020 Revised Rule for Section 1557 of the ACA:

NHeLP will continue to monitor these cases and submit amicus briefs to support plaintiffs challenging the 2020 Revised Rule.

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