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Excerpted From: Valarie K. Blake, An Opening for Civil Rights in Health Insurance after the Affordable Care Act, 36 Boston College Journal of Law & Social Justice 235 (2016)(343 Footnotes)(Full Document)


ValarieBlakeSection 1557 of the Patient Protection and Affordable Care Act (“ACA”) has potential to broadly remedy discrimination in healthcare. Section 1557 prohibits race, gender, age, and disability discrimination by healthcare entities receiving federal financial assistance. As the first healthcare-specific civil right, the first civil right to extend gender protections to healthcare (including protections for gender identity and sexual orientation discrimination), and the first civil right to broadly capture the private health insurance market, this provision represents progress for many different groups. With agency rules in development, advocacy groups are unsurprisingly turning to section 1557 as a basis for arguing for broader rights in healthcare financing and delivery.

Health insurers engage in conduct that may frequently be prohibited under section 1557. For instance, is it a permissible form of discrimination if an insurer fails to cover Sovaldi, the infamous $84, 000 Hepatitis C drug, or if the insurer limits availability to only the sickest Hepatitis patients? Can insurers pass some of the cost of expensive specialty drugs onto cancer or HIV patients through copays and deductibles? Can insurers network exclusively with providers who offer better reimbursement rates even if it means that certain patients do not have adequate access to specialty doctors and hospitals? Are wellness programs that shift costs from healthy employees onto unhealthy employees permissible? Are ACA provisions that make premiums far more expensive for older smokers permitted? Can an insurer limit expensive services such as gender transition therapies? These are all current scenarios where guidance about the limits of permissible insurance discrimination is unclear.

The ACA addressed discrimination in insurance through a number of provisions, mainly targeted at health status discrimination by private insurers. Despite the ACA's many successes, some forms of health insurance discrimination will persist. Section 1557 is another lens through which to examine the legal boundaries of health insurance discrimination because it extends beyond health status discrimination to protected class discrimination and health disparities. It reaches not just the private market but also public insurance--such as Medicare and Medicaid many employer-sponsored insurance plans. It creates new remedies and forums for complaints. Additionally, section 1557 applies a different framework, exploring health insurance discrimination through civil rights doctrine instead of regulation.

Many of the early section 1557 complaints and lawsuits have focused on ongoing acts of discrimination by health insurers, yet no legal scholarship has addressed section 1557 in this context. This Article is intended to aid courts, litigants, and policymakers who are currently faced with section 1557 challenges. The Article also initiates an academic dialogue about the promise and limitations of a civil rights remedy in health insurance. Though civil rights in health insurance are not altogether new (having applied to some public programs in the past), they deserve renewed attention given that section 1557 is more expansive than prior protections (covering gender discrimination and private insurance discrimination). Moreover, these broader protections are the new normal, a response to increased federal subsidies in healthcare that are likely to continue in the future.

The Article will proceed by first giving an overview of health insurance discrimination--why insurers discriminate and who is affected by the discrimination.

Part Two will detail the various efforts by the ACA to combat health insurance discrimination, including section 1557 and the ACA provisions that reduce discrimination in premiums, enrollment, and benefits.

Part Three will explore what the civil rights framework offers to health insurance discrimination, including how disparate impact and disparate treatment protections can reduce current examples of discriminatory conduct.

Lastly, Part Four will describe doctrinal complications that may limit a civil rights approach to health insurance discrimination. This Part will address whether economic defenses to discrimination are permitted and whether a civil rights vision of formal equality can appropriately address the unique needs of vulnerable patient populations. The Article will conclude by positing that expanded civil rights in health insurance raise broader normative and theoretical questions that merit further exploration.

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Section 1557 or a similar provision is likely to remain in health insurance, regardless of the future of health reform. The original intent behind the Civil Rights Act of 1964, which became the model for future civil rights laws incorporated into section 1557, was that “simple justice requires that public funds, to which all taxpayers of all races [colors, and national origins] contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial [color or national origin] discrimination.” The idea of simple justice in government funds is consonant with Deborah Stone's social solidarity model presented previously. That is, simple justice requires that the common fund paid in by all insureds through premiums not be used in a way that further entrenches disparities, whether health status-based or health disparities-based. As long as any version of health reform brings federal dollars into the healthcare arena there will be an opportunity to apply these broad civil rights protections.

Section 1557 substantively builds on the other, better-known provisions of the ACA that combat health insurance discrimination while also uniquely protecting vulnerable groups in health insurance. It can play a significant role in eliminating health disparities related to health insurance discrimination and can contribute to broader health equity. However, civil rights laws will not be the cure-all for every aspect of health insurance discrimination because they include a number of doctrinal limitations. Fundamentally, section 1557 can bring healthcare closer to social solidarity by pushing society to examine whether benefits are being equally offered across groups and determining to what extent courts can permit economic discrimination in the face of harms to protected classes. Section 1557, like the ACA, however, is not a form of universal coverage. As a civil rights provision, section 1557 may not engage well with questions of universal access and substantive equality, or of whether an insurer must cover a given benefit in order to make the system more equitable.

Inevitably, section 1557 and the wider anti-discrimination agenda of the ACA in addressing the issue of freedom from discrimination in insurance come close to reaching broader issues of a right to healthcare. They also raise a fundamental, broader question about the purpose of civil rights protections and anti-discrimination protections in health insurance: should we worry about health status discrimination because it may further entrench already disadvantaged groups, or do we worry about it as an issue in and of itself? To that end, what are the best remedies and which forms of discrimination should we inhibit? The role that civil rights doctrine can and will play in these broader questions of health equity is ripe for further legal and theoretical study.

Associate Professor of Law, West Virginia University College of Law.