Update on ACA Section 1557 Litigation & Regulations

By: Allison Tinsey, L’18

 

In April, the Richmond Public Interest Law Review published my comment on the right of private action in healthcare discrimination cases.[1] In that article, I reviewed the nondiscrimination provision of the Patient Protection and Affordable Care Act (“ACA”) (“section 1557”),[2] and its complementary regulations promulgated by the U.S. Department of Health and Human Services (“HHS”) (“final rule”).[3] As discussed, the final rule asserts a private right of action for beneficiaries of health programs receiving federal funds to bring a lawsuit against a covered entity for race, sex, age, and disability discrimination.[4]

 

Rumble & SEPTA[5]

 

In both of these cases, the plaintiffs sought relief for discrimination against their healthcare providers under section 1557.[6] These cases, however, differed in their analysis of the rights afforded to plaintiffs claiming a right of private action under the statute. The court in Rumble determined that plaintiffs could bring a discrimination claim under any of the standards of relief provided by the statute.[7] Alternatively, in SEPTA, the judge found that Congress did not intend section 1557’s protections to extend any claim.[8]

 

With that conflict in mind, Rumble was set to go to trial in June.[9] However, on May 26, 2017, a settlement was reached between Rumble and Fairview Health, but the settlement is sealed and inaccessible to the public.[10] Judge Nelson issued an order dismissing the case with prejudice in late June.[11] SEPTA did not go up for appeal after concluding in 2015.[12]

 

Current Affairs

 

The new HHS administration has drawn concerns from lawmakers and advocacy groups about whether they plan to enforce section 1557 and the final rule, especially in regard to gender discrimination.[13] Notably, HHS was awarded a stay of enforcement on gender discrimination claims as it reviews the rule despite contradictory findings by other courts.[14] The review of the rule was spurred by Executive Order 13,798, which calls for executive agencies to formulate, implement, and enforce policies that robustly protect religious freedom.[15] Specifically, the Order tells the Secretary of HHS to consider amending regulations “to address conscience-based objections to the preventive-care mandate.”[16] In October, HHS issued interim rules on religious and moral exemptions and accommodations for coverage of preventive services under the ACA.[17]

 

HHS will likely face more challenges to its gender discrimination regime and its statutory authority to create rules that undermine the meaning of the ACA’s contraception coverage mandate and section 1557’s nondiscrimination provisions. For now, the question of a private right of action in these cases is set aside and relief for intersectional claims has yet to be resolved in lieu of litigation surrounding whom section 1557 protects from discrimination.

[1] Allison M. Tinsey, Private Right of Action Jurisprudent in Healthcare Discrimination Cases, 20 Rich. Pub. Int. L. Rev. 305 (2017).

[2] Patient Protection and Affordable Care Act, 42 U.S.C. § 18116 (2012).

[3] Nondiscrimination in Health Programs and Activities, 45 C.F.R. pt. 92 (2016).

[4] Tinsey, supra note 1, at 306; see also 42 C.F.R. pt. 92.101(a)(1).

[5] Rumble v. Fairview Health Services, No. 14-CV-2037, 2015 WL 1197415 (D. Minn. Mar. 16, 2015); cf. Se. Pa. Transp. Auth. v. Gilead Sci., Inc., 102 F. Supp. 3d 688 (E.D. Pa. 2015).

[6] See Rumble, 2015 WL 1197415 at *1; SEPTA, 102 F. Supp. 3d at 695–96.

[7] Rumble, 2015 WL 1197415 at *12.

[8] SEPTA, 102 F. Supp. 3d at 698-99, n.3.

[9] Trial Notice & Final Pretrial Order, Rumble, 2015 WL 1197415 (D. Minn. May 16, 2017) (Doc. No. 240).

[10] Settlement Conference, Rumble, 2015 WL 1197415 (D. Minn. May 26, 2017) (Doc. No. 251).

[11] Order for Dismissal with Prejudice, Rumble, 2015 WL 1197415 (D. Minn. June 28, 2017) (Doc. No. 257).

[12] SEPTA, 102 F. Supp. 3d at 688.

[13] See, e.g., Letter from U.S. Sens. Patty Murray et al., to Tom Price, HHS Secretary (Aug. 15, 2017), https://www.help.senate.gov/imo/media/doc/20170815_August%201557%20Letter.pdf; Health, Human and Civil Rights Advocates Warn Trump HHS Will Weaken Health Law’s Nondiscrimination Provision, Nat’l Health L. Program (Sept. 14, 2017), http://www.healthlaw.org/news/press-releases/649-health-human-and-civil-rights-advocates-warn-trump-hhs-will-weaken-health-laws-nondiscrimination-provision.

[14] See Order, Franciscan Alliance, Inc. et al. v. Price et al., No. 7:16-CV-00108-O, 2017 WL 3616652 at *3 (N.D. Tex. Jul., 10, 2017) (citing Defendants’ Motion for Voluntary Remand and Stay, Franciscan Alliance, 2017 WL 3616652 (N.D. Tex. May 2, 2017) (arguing parties could waste limited resources litigating issues that may be mooted by HHS’s impending review of the Rule)); cf. Prescott v. Rady Children’s Hospital, No. 16-CV-02408, 2017 U.S. Dist. LEXIS 160259 at *8, n.3 (S.D. Cal. Sept. 27, 2017) (citing 45 C.F.R. pt. 92.4) (“HHS defines discrimination on the ‘basis of sex’ to include ‘termination of pregnancy’ and ‘gender identity.'”).

[15] Exec. Order No. 13,798, 82 Fed. Reg. 21,675 (May 9, 2017).

[16] Id. at § 3.

[17] Religious Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,792 (Oct. 6, 2017) (to be codified at 26 C.F.R. pt. 54, 29 C.F.R. pt. 2590, & 45 C.F.R. pt. 147); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act, 82 Fed. Reg. 47,838 (Oct. 6, 2017) (to be codified at 26 C.F.R. pt. 54, 29 C.F.R. pt. 2590, & 45 C.F.R. pt. 147).

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