A recent injunction and upcoming changes could have a significant impact on discrimination in healthcare and health insurance in the United States. In May of 2016, the Department of Health and Human Services (HHS) issued a final rule that prohibited federally funded health programs from discriminating against individuals based on color, race, national origin, age, disability and sex (including gender identity).
On December 31, 2016, the Federal Court ruled to grant a nationwide preliminary injunction that will block the enforcement of certain provisions of that rule.
Key Provisions of Section 1557 of the Affordable Care Act
Section 1557 was designed to help improve access to healthcare and health insurance for members of the nation’s population who are most vulnerable to discrimination. Key provisions of the section include:
- Protecting transgender individuals from discrimination based on gender identity. In a recent survey, 25 percent of transgender individuals reported having been discriminated against with regard to healthcare and health insurance. Under Section 1557, health insurance companies were no longer allowed to exclude transgender-related services from coverage or make other coverage-related decisions that could result in discrimination.
- Protections for the LGBT community. A number of sexual orientation cases are soon to be decided that will help provide clarification for discrimination.
- Ensuring that women have equal access to health insurance and healthcare. Companies would no longer be allowed to charge women higher coverage premiums than men. They could no longer be disqualified from coverage for conditions like pregnancy, pregnancy-related issues, termination of pregnancy, or familial/marital status.
Effects of the Court’s Injunction
The court’s injunction temporarily bans the enforcement of Section 1557 provisions that prohibit gender identity or termination of pregnancy discrimination. The court held that the rule, as written, is likely in violation of the Religious Freedom Restoration Act (RFRA) because it places pressure on healthcare providers and insurers to perform services and provide coverage for abortions and gender transition procedures. The court also asserted that the government’s programs for providing health insurance do not mandate coverage for gender transition.
Other provisions of the section are not affected by the injunction. These provisions, which took effect on January 1, 2017, will continue to be enforced by the Health and Human Services Office for Civil Rights. Under Section 1557, the provisions prohibit discrimination based on race, color, national origin, age, disability, or sex (except gender identity).