An Opening for Civil Rights in Health Insurance After the Affordable Care Act

INTRODUCTIONSection 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.2 As the first healthcare-specific civil right,3 the first civil right to extend gender protections to healthcare (including protections for gender identity and sexual orientation discrimination),4 and the first civil right to broadly capture the private health insurance market,5 this provision represents progress for many different groups. With agency rules in development,6 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?7 Can insurers pass some of the cost of expensive specialty drugs onto cancer or HIV patients through copays and deductibles?8 Can insurers network exclusively with providers who offer better reimbursement rates even if it means that cer2 tain patients do not have adequate access to specialty doctors and hospitals?9 Are wellness programs that shift costs from healthy employees onto unhealthy employees permissible?10 Are ACA provisions that make premiums far more expensive for older smokers permitted?11 Can an insurer limit expensive services such as gender transition therapies?12 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.13 Despite the ACA's many successes,14 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 Medicaid15-and many employersponsored insurance plans.16 It creates new remedies and forums for com9 plaints.17 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,18 yet no legal scholarship has addressed section 1557 in this context.19 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),20 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.21The 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. …