The Affordable Care Act and Civil Rights: The Challenge of Section 1557 of the Affordable Care Act.

Abstract

I n May 2016, the Obama Administration issued longawaited regulations implementing §1557 of the Affordable Care Act (ACA).1 Broad in scope, §1557 does what virtually no civil rights law has done before: it extends the principle of nondiscrimination to the content of health insurance, that is, coverage standards themselves. At the same time, however, the challenge of insuring nearly all residents within the world’s costliest health care system, coupled with long-standing insurer traditions designed to shield companies, sponsors, and policyholders from excessive costs, underscores the many complexities involved in balancing coverage with equity. Section 1557 provides that no individual shall be barred from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity, any part of which receives federal financial assistance. The concept of federal financial assistance reaches not just grants or public insurance payments but also tax credits, government payment subsidies, and contracts of insurance. The principle of discrimination incorporates the cornerstones of US civil rights law—Title VI of the Civil Rights Act of 1964 (race, color, and national origin), Title IX of the Education Amendments of 1972 (sex), §504 of the Rehabilitation Act of 1973 (disability), and the Age Discrimination Act of 1975 (age). The reach of existing civil rights laws into health care has been considerable and transformative in its own right. But these laws were generally interpreted as falling short of reaching health insurance coverage itself.2 The US Supreme Court ruled that disability antidiscrimination law does not bar state Medicaid programs from imposing across-the-board limits on hospital coverage, even though such limits may leave people with disabilities without access to adequate treatment. Lower courts have similarly ruled in the past that disability nondiscrimination law does