By Sheryl Allenson, J.D.
Through complaint, attorneys general seek to protect against health care discrimination.
Attorneys general from 23 states and commonwealths (the states) banded together to file suit against HHS, seeking to derail an HHS rule (the 2020 Rule) that would make it easier for health care providers and insurance companies to discriminate based on, among other things, transgender and other LGBTQ+ status, women and people with limited English proficiency (LEP). The complaint alleges that the 2020 Rule "is part of the Trump Administration’s campaign to eradicate civil rights protections for transgender people."
The attorneys general filed a four-count complaint seeking declaratory and injunctive relief arising from the looming implementation of the 2020 Rule. They seek a declaration, among other things, that the 2020 Rule is arbitrary, capricious, an abuse of discretion, or not in accordance with law, that the Rule violates the Equal Protection Clause of the Fifth Amendment, and that the Rule is in excess of HHS’s jurisdiction. Additionally, the states seek to enjoin HHS from taking action under the Rule. The complaint contains allegations that the 2020 Rule was "improperly motivated by defendants’ animus toward transgender people and antipathy to their health care needs," and that the 2020 Rule is "rife" with that animus.
By way of background, the complaint explains that the ACA contains a civil rights provision known as section 1557. This section prohibits all health programs and activities receiving federal financial assistance, including medical provider, health systems and health insurers from discriminating against individuals on the bases of race, color, national origin, sex, age, or disability.
According to the complaint, after the ACA took effect, HHS confirmed that the statute’s prohibition against discrimination on the basis sex barred, among other things, discrimination based on gender identity, nonconformity to sex stereotypes and pregnancy related conditions. After a three-year long process to codify the statute’s civil rights protections, HHS published a Final Rule (the 2016 Rule). That Rule laid out the breadth of the statute’s reach at protecting covered entities from discrimination.
The states claim that thereafter, HHS was engaged in a rollback of LBGTQ protections in its programs, activities and policies. Thus, three years later, HHS had an about face and promulgated a proposed rule known as the Nondiscrimination in Health and Health Education Programs or Activities (2019 NPRM). According to the states, the 2019 NPRM sought to undermine the core protections of the 2016 Rule and of the protections under section 1557.
Thereafter, HHS published a final rule, called Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, which made menial adjustments to the 2019 NPRM. The 2020 Rule seeks to amend HHS’s regulations implementing civil rights statutes under the ACA and Title IX of the Education Amendments of 1972.
The states allege that the 2020 Rule "arbitrarily and unlawfully" strips health care rights protected by section 1557 from transgender and other LGBTQ people, women and other individuals seeking reproductive health care or with pregnancy-related condition, LEP individuals, individuals with disabilities and other individuals experiencing discrimination. According to the states, the 2020 Rule eliminates express sex discrimination protections by removing the definition of "on the basis of sex" from section 1557’s regulations.
The complaint points out that HHS seeks to implement the 2020 Rule, notwithstanding the Supreme Court’s recent decision in Bostock v. Clayton County. In that decision, the Court held that the prohibition on sex discrimination under Title VII prohibits discrimination based on sexual orientation or transgender status. According to the states, Rule 2020 flies directly in the face of Bostock’s teachings.
The states also assert that the 2020 Rule redefines covered "health program or activity" to exclude many health insurers not "principally engaged in the business of supplying healthcare." The Rule is contrary to section 1557 and narrowly defines healthcare to exclude health insurance. In turn, this removes many entities from its scope. According to the complaint, this redefinition is "at odds with" the plain language of section 1557 and its core purpose. Additionally, the states allege that the 2020 Rule runs contrary to section 1557 by creating a "broad" religious exemption.
In the complaint, the states elucidate the many ways in which they are hurt by Rule 2020. For example, they allege that there will various costs and burdens placed on the states, and that public health will be harmed. Additionally, the states allege that the rule will be harmful to, among others, LGBTQ individuals, to women and others seeking reproductive health care or with pregnancy related conditions, and those with limited English speaking capacity.
In light of the allegations set forth by the states, they seek action in four claims for relief. In the first three claims, the states rely on the Administrative Procedures Act. In the fourth the states seek recovery under the Fifth Amendment.
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