Press Release  AG Healey Leads Effort to Preserve Anti-discrimination Protections in Health Care

BOSTON — Massachusetts Attorney General Maura Healey today co-led 23 attorneys general in filing a motion for partial summary judgment asking the court to vacate a Trump Administration rule that seriously undermines federal anti-discrimination protections for patients who are LGBTQ, seeking reproductive care, or have limited English proficiency.

“This country is battling an unprecedented public health crisis, and instead of expanding access to critical care, the White House is putting up barriers for some of our most vulnerable residents and exacerbating the fear and anxiety that already exists for these communities,” AG Healey said. “We urge the Court to put a stop to this discriminatory rule and protect the health of millions of Americans during a global pandemic.”

Today’s motion is part of a July lawsuit co-led by AG Healey, New York Attorney General Letitia James, and California Attorney General Xavier Becerra against the U.S. Department of Health and Human Services (HHS) Secretary Alex Azar, and the head of HHS’s Office of Civil Rights, Roger Severino in the U.S. District Court for the Southern District of New York. The lawsuit alleges the new rule invites health care providers and insurers to discriminate against certain vulnerable and protected populations by rolling back implementation of Section 1557 of the Patient Protection and Affordable Care Act, which prohibits discrimination based on race, color, national origin, sex, disability, or age by health programs or facilities that receive federal funds. Federal district court judges out of the Eastern District of New York and the District of Columbia have recently blocked HHS from enforcing portions of the rule in cases filed by private litigants. 

The new rule dramatically revises regulations implementing Section 1557 and removes protections against discrimination based on sex and gender identity. In excluding gender identity from federal protections, the new rule completely ignores the Supreme Court’s decision in Bostock v. Clayton County, which held that discrimination on the basis of sexual orientation or transgender status is sex discrimination.

After numerous failed legislative and legal battles to repeal and dismantle the ACA, the Trump Administration’s new rule would now eliminate many of the express protections contained in the Section 1557 regulations, unlawfully exclude many health insurers from Section 1557’s scope, and invite health care providers and health insurers to deny care and insurance coverage to particularly vulnerable communities. The new rule would also impose unreasonable barriers for those seeking timely access to health care, in violation of Section 1554 of the ACA.

In the motion, the state coalition argues that the rule should be vacated in its entirety because, among other reasons:

• The removal of explicit protections against discrimination on the basis of gender is arbitrary and capricious and contrary to federal law, including Section 1557 of the ACA.
• The rule contains broad religious exemptions for abortion that are arbitrary and capricious, contrary to law, and exceed HHS’s statutory authority.
• The elimination of language access provisions for limited English proficient people is arbitrary and capricious.
• The rule failed to consider the public health harms that will result to communities that already face barriers in the healthcare context.

In August 2019, AG Healey and AG Becerra co-led comments calling on HHS to withdraw the rule. In April, the attorneys general reiterated their call for the Administration to withdraw the rule, in an effort to avoid further straining the country’s already overburdened health care system in the midst of the COVID-19 pandemic.

Data shows that the COVID-19 pandemic is already exacerbating racial and ethnic disparities in healthcare that the ACA attempted to address. Immigrants and communities of color have been disproportionately impacted. Individuals with disabilities are at greater risk of infection and long-term illness or death, and the pandemic has created new barriers for them in accessing the care they need. The public health crisis has also exacerbated gender inequities in the healthcare system.

AG Healey’s Civil Rights Division enforces federal and state civil rights laws, including anti-discrimination laws in Massachusetts that continue to protect residents from discrimination in health care and insurance. The Division encourages residents who feel their civil rights have been violated to call its hotline at (617) 963-2917 or file a complaint online.

Joining AG Healey, AG Becerra and AG James in filing today’s lawsuit are the attorneys general of Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin, and the District of Columbia.

This case is being handled for Massachusetts by Assistant Attorneys General Amanda Hainsworth of AG Healey’s Civil Rights Division and Kimberly Parr of AG Healey’s Administrative Law Division, with assistance from Assistant Attorneys General Jon Burke and Ann Lynch, and Division Chief Abigail Taylor, all of AG Healey’s Civil Rights Division.

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