On June 24, 2020, the Trump Administration announced it would roll back regulatory provisions protecting against discrimination in health care. Delivered in the midst of a global pandemic, this news was particularly devastating to people with disabilities and chronic health conditions who have been disproportionately impacted by COVID 19.
Prior to the Affordable Care Act (ACA), people with disabilities and chronic health conditions routinely faced discrimination in obtaining health coverage and accessing critically important services and supports. Insurance companies regularly denied coverage to people with pre-existing conditions, charged higher premiums for care, and often imposed treatment limits, restrictions and caps on certain types of services.
Existing civil rights laws like the Americans with Disabilities Act and Section 504 of the Rehabilitation Act did not protect people with disabilities from discrimination in private insurance. The ACA helped dismantle decades of discrimination by prohibiting these practices, paving the way for people with disabilities and chronic health conditions to access health services.
Section 1557 of the ACA prohibits discrimination against people on the basis race, color, national origin, language proficiency, sex, sex stereotypes, gender identity, age, and disability. A final rule implemented in 2016 helped ensure that these protections were robustly enforced.
Yet, a new final rule issued by the Trump administration would gut many of these provisions, making it harder for people with disabilities and chronic health conditions to enforce their rights and access health care. The COVID 19 epidemic has highlighted the depth of disability discrimination in health care. If anything, this pandemic should serve as an example of how important these nondiscrimination protections are. Despite this, the Administration has pressed forward in its attempts to deconstruct these protections
Section 1557 applies to all health programs and activities that receive federal financial assistance, health programs and activities that are administered by the federal government, and entities created under part of the ACA such as the federal Marketplaces and insurance plans sold through the Marketplace.
Under the law, any entity that receives federal financial assistance would be subject to Section 1557. However, the 2020 rule would create a major exemption to this provision by claiming that health insurance companies are not primarily engaged in providing health care. This faulty interpretation would exempt most private health insurance plans from the nondiscrimination provisions. This interpretation would be especially harmful to people with disabilities, their families, and caregivers who receive health insurance coverage through their employer.
The new rule also eliminates provisions of the 2016 rule that expressly prohibited discrimination in insurance plan benefit design and marketing. Historically, people with chronic health conditions and disabilities have been subject to these discriminatory practices. For example, in 2014 the National Health Law Program and The AIDS Institute filed a complaint against four Florida insurers who placed all drugs used to treat HIV in the highest cost tiers, limiting access to treatment.
The 2016 rule clearly prohibited such practices. The ACA and prior civil rights laws still contain protections against disability discrimination. However, the elimination of the Section 1557 regulatory provisions along with the narrowed scope of the rule, makes it especially difficult for people with disabilities pursuing discrimination claims, particularly against employer-based health insurance sold outside the ACA marketplace.
Additionally, the rule eliminates notice and tagline requirements that informed people of their rights under Section 1557 and detailed how to file a complaint in the event of discrimination. This requirement shifts the burden of compliance and enforcement from providers to individuals.
People with disabilities and chronic health conditions are frequently seen by multiple specialists and are regularly juggling multiple sources of information, paperwork, and care coordination issues. Health care is complex and people need to be clearly informed of their rights, and ways to enforce them. The elimination of notices and taglines is likely to deter people with disabilities from asking for the supports and assistance they are entitled to and from filing complaints when they do encounter discrimination.
Finally, the rule eliminates important protections for people with limited English proficiency, for people seeking reproductive and sexual health care, and LGBTQ individuals. People with disabilities often live at the intersection of multiple identities. Many are non-native English speakers, an issue which can be compounded by intellectual, developmental, or sensory disabilities.
For example, an individual with an intellectual disability, who has limited English proficiency, may have a difficult time accessing appropriate materials and information. People with disabilities often face discrimination in their choices about reproductive and sexual health and it is critical that they be provided with clear, accurate, and easy to understand information about their rights and choices.
A significant portion of LGBTQ individuals also have disabilities and have difficulty accessing appropriate care. This Administration’s repeal of nondiscrimination regulations creates irreversible harm to individuals who are already struggling to receive appropriate health care.