Case 1:20-cv-01630-JEB Document 75-2 Filed 08/13/21 Page 14 of 74
The ACA was a sea change of what was and was not allowed in health insurance coverage. The express objective of the ACA was to ensure equal and comprehensive access to health care benefits, including the content of those benefits. The creation of Sec. 1557 within the larger context of the ACA made it clear that the discrimination that had been allowed previously under Title VI, the ADA and Sec. 504 would no longer be allowed under the protections of the ACA and its nondiscrimination provision. Sec. 1557 corrected for decades of discrimination. OCR should make clear that Sec. 1557 cannot be undone by bringing in the very discrimination allowed under Sec. 504 and the ADA and the limits on enforcement of Title VI that Sec. 1557 and the ACA address. If OCR is unable to fully incorporate an explicit cause of action for intersectional discrimination along with the accompanying suite of remedies in the newly revised regulations, the matter should be allowed to continue to percolate in the courts.
