Last week, the National Health Law Program (NHeLP) filed an amicus brief, signed by ten other health and civil rights organizations, in support of the State of Washington’s motion for a preliminary injunction to prevent the Trump Administration’s recent Rule, which significantly rolled back non-discrimination protections in health care (2020 Revised Rule), from going into effect. Washington’s suit is one of five filed so far to challenge the Trump Administration’s Revised Rule (2020 Revised Rule), as discussed below.
NHeLP’s 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. The ACA made important changes to health care in the United States, including Medicaid, and included critical provisions to address previously-permitted discrimination based on sex, disability, and health status.
What Was Previously in the Rule and What Changed?
Section 1557 of the ACA contains a robust section prohibiting discrimination in health care on the basis of race, sex, age, and disability. After the ACA was signed into law, the U.S. Department of Health and Human Services (HHS) undertook an expansive and detailed rulemaking process, collecting more than 25,000 comments, many of which expressed the importance to eliminating discrimination in health care. In 2016, after three years of rulemaking, HHS issued regulations implementing the ACA (2016 Final Rule).
The 2016 Final Rule defined discrimination because of “sex” to include discrimination on the basis of sexual orientation, gender identity, sex stereotyping, and termination of pregnancy. Recognizing the ACA’s goal to expand health care access for limited English proficiency (LEP) individuals, the 2016 Rule included mandates for language access services, including posted taglines in the top 15 languages spoken in each state.
Further, the 2016 Final Rule made clear that Section 1557’s coverage of “any health program or activity,” included both providers of health care services, insurers, and some Federal programs.
By implementing these and other requirements, the 2016 Final Rule led to a dramatic reduction in discriminatory policies and practices in health care. Unfortunately, these protections were short-lived, as the Trump Administration took office shortly after the Rule was promulgated and has repeatedly taken action to undermine the ACA and Section 1557 ever since.
In June 2020, HHS issued the 2020 Revised Rule, which redefined “sex” discrimination to exclude discrimination on the basis of gender identity, sexual orientation, or termination of pregnancy, and eliminated language access requirements for LEP individuals and individuals with disabilities.
The 2020 Revised Rule significantly narrowed the scope of entities covered by Section 1557, so that private health insurers and previously covered Federal programs are no longer prohibited from discriminating or declining to cover services.
Just a few days after HHS submitted its Final Rule for publication in the Federal Register, the Supreme Court handed down a landmark decision for LGBTQ+ rights in Bostock. In a set of consolidated cases involving employment discrimination, the Supreme Court held that a prohibition on sex-based discrimination included discrimination on the basis of sexual orientation and gender identity.
Despite clear guidance from the Supreme Court, HHS went ahead and published its rule, which spent 80 pages in the preamble arguing that discrimination on the basis of sexual orientation and gender identity did not constitute sex discrimination — an argument now at odds with the Supreme Court’s clear holding. Within days of the final rule’s publication, several entities filed suit to stop the rule from going into effect, as outlined below.
NHeLP’s 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 Final Rule’s changes to:
- incorporate religious and disability exemptions not found in the Section 1557 statute;
- remove of the notice, tagline, and effective communication requirements that impacts LEP individuals and people with disabilities; and
- narrowing the scope of the entities covered by Section 1557, including to no longer cover most private insurance plans and other previously covered Federal programs.
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 Washington’s preliminary injunction briefing largely focused on changes to sex discrimination, NHeLP’s 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 what 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.
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. Meanwhile, similar motions are pending in two other cases, which could still impact the other changes made by the 2020 Revised Rule.
Here is the full list of pending cases challenging the 2020 Revised Rule for Section 1557 of the ACA:
- A suit by Lambda Legal and Steptoe & Johnson LLP in the District Court for the District of Columbia., where the court heard arguments on Lamba’s motion for a preliminary injunction on August 3; that motion is still pending.
- A suit by the Human Rights Campaign and BakerHostetler in the District Court for the Eastern District of New York, where the court heard arguments on plaintiffs’ motion for a preliminary injunction on August 12. (This suit resulted in the injunction issued August 17, discussed above.)
- A suit by the Washington Attorney General in the District Court for the Western Washington, where the court heard arguments on the state’s motion for a preliminary injunction on August 14; that motion is still pending. (NHeLP filed its amicus brief in this suit.)
- A suit filed by a multi-state coalition of 23 Attorneys General in the District Court for the Southern District of New York.
- A suit filed by the National Women’s Law Center (NWLC), Transgender Law Center (TLC), the Transgender Legal Defense & Education Fund (TLDEF), the Center for Health Law and Policy Innovation (CHLPI) of Harvard Law School, and law firm Hogan Lovells in the District Court for the District of Massasschusetts.
NHeLP will continue to monitor these cases and submit amicus briefs to support plaintiffs challenging the 2020 Revised Rule.