By On Wednesday, Connecticut Attorney General William Tong joined 21 attorneys general in filing a lawsuit to stop a new Trump Administration rule that, the coalition alleges, makes it easier for healthcare providers and insurance companies to discriminate against certain vulnerable and protected classes of Americans.
In a lawsuit filed against the U.S. Department of Health and Human Services, HHS Secretary Alex Azar, and the head of HHS’s Office of Civil Rights, Roger Severino, the coalition of attorneys general contend that the new rule emboldens providers and insurers to discriminate against LGBTQ+ individuals, those with limited English proficiency and women, among others.
They claim the rule strips express protections for these groups in HHS regulations that implement the nondiscrimination provision of the Patient Protection and Affordable Care Act.
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This provision of the ACA prohibits discrimination based on race, color, national origin, sex, disability, or age by health programs or facilities that receive federal funds.
Tong joins New York Attorney General Letitia James, California AG Xavier Becerra and Massachusetts AG Maura Healey, as well as the attorneys general of Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin and the District of Columbia in filing the lawsuit.
WHAT’S THE IMPACT?
In the lawsuit filed Tuesday in the U.S. District Court for the Southern District of New York, the coalition argues that HHS has unlawfully ignored the harms that the new rule will impose on vulnerable populations, including LGBTQ+ individuals, individuals with limited English proficiency and women, as well as other protected classes.
The coalition also contends that HHS has failed to justify why it pivoted from its prior policy, which, among other things, explicitly prohibited discrimination in healthcare, and required health entities to provide meaningful language assistance services to individuals with limited English proficiency, including notifying them of their rights to translation and interpretation services.
In addition, the lawsuit alleges that the Trump Administration was motivated by animus toward the transgender community in issuing this rule.
Specifically, the coalition said the new rule is arbitrary and contrary to law under the Administrative Procedure Act, and that it violates the equal protection guarantee of the Fifth Amendment.
THE LARGER TREND
Under the Obama Administration, HHS issued regulations implementing Section 1557 of the ACA in 2016 making clear that discrimination on the basis of gender identity, nonconformity to sex stereotypes and pregnancy status are forms of sex discrimination prohibited by the statute. Specifically, Section 1557 prohibits discrimination by any healthcare program (including providers and insurers) against individuals on the basis of race, color, national origin, sex, disability or age.
Federal courts have also held that the statute’s prohibitions on sex discrimination protect transgender and other LGBTQ+ individuals from such discrimination, which was confirmed in last month’s Supreme Court decision in Bostock v. Clayton County. That decision held that discrimination based on sexual orientation and transgender status are forms of sex discrimination prohibited by federal civil rights law.
Despite numerous failed legislative and legal battles to repeal and dismantle the ACA, the Trump Administration’s new rule would effectively eliminate many of the express protections contained in the Section 1557 regulations, according to the attorneys general.
They say the move would unlawfully exclude many health insurers from Section 1557’s scope, and would embolden healthcare providers and health insurers to deny care and insurance coverage. The new rule, they argue, would also impose barriers and impede timely access to healthcare for Americans, in violation of Section 1554 of the ACA.
Before the rule was finalized, the coalition previously called on the Trump Administration to withdraw the rule by submitting a comment letter to HHS last August, as well as by sending a letter to HHS this past April, at the start of the COVID-19 public health crisis.
