Attorneys General Warn that Proposed Changes to Non-Discrimination Rule Could Violate the ACA and Administrative Procedure Act

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In a comment letter to the U.S. Department of Health and Human Services (HHS), 22 attorneys general (AGs) have condemned the Trump Administration’s Proposed Rule to alter the Patient Protection and Affordable Care Act (ACA) non-discrimination provision, Section 1557. The AGs stated that the Proposed Rule directly conflicts with several provisions of the ACA and the congressional intent for 1557, and consequently violates the ACA and the Administrative Procedure Act (APA). The AGs argue that the ACA non-discrimination provisions as initially enacted have played a critical role in helping historically marginalized populations seek care and that the Proposed Rule would reverse this progress and open the door to discrimination in health care.

Notably, the Proposed Rule would roll back protections for members of the LGBTQ community, eliminate language requirements for people with limited English proficiency (LEP), and reduce the scope of entities that are required to comply with the non-discrimination provisions (i.e., employer plans governed by ERISA and short terms plans would not have to comply with the ACA’s non-discrimination provisions).

The AGs explain that that Proposed Rule may violate the ACA by:

  • Directly conflicting with Section 1554 of the ACA, which explicitly bars HHS from promulgating regulations that create unreasonable barriers to timely access to health care services;
  • By limiting the scope of the rule to entitles under Title I of the ACA, conflicting with the requirement that the 1557 protection apply to any program or activity that is administered by the Executive agency;
  • Intentionally diminishing of the intended scope of Section 1557, such that it “completely ignores” that Congress intended to create new discrimination protections in the ACA, regardless of the scope of other anti-discrimination statutes;
  • Failing to recognize a private right of action for disparate impact claims, contrary to the congressional intent of the Section to create a health-specific, anti-discrimination cause of action; and
  • Conflicting with Section 1557’s intent to prevent discrimination in the provision of healthcare, by excluding the protection of transgender individuals and those who have terminated pregnancy, as well as creating other blanket exemptions from the rule.

Because the Proposed Rule directly conflicts with the ACA, the AGs argue that the changes are arbitrary and capricious and that the Office for Civil Rights (OCR) has overstepped its rulemaking authority. The AGs explain that “Congress enacted Section 1557 to protect individuals from discrimination, not encourage it.” Consequently, they argue that the Proposed Rule violates the APA by changing the terms of Section 1557 such that it directly conflicts with congressional intent.

Moreover, they explain that the Proposed Rule is “markedly different” than the policies included in another recently issued rule from the OCR that allows providers to refuse to provide services that violate their religious beliefs by weakening explicit definitions, notice requirements, and enforcement mechanisms. While that rule provided explicit definitions and notice requirements, the Proposed Rule does “exactly the opposite” by removing definitions and weakening communication requirements. Because this conflict is “illogical on its own terms,” the AGs argue that it is arbitrary and capricious and consequently violates the APA.

A copy of the letter can be read here.

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