Case 1:20-cv-01630-JEB Document 75-2 Filed 08/13/21 Page 27 of 74
DISABILITY DISCRIMINATION: Clarify that disability discrimination under the ACA does not incorporate the limitations from other statutes that were interpreted to allow the very discrimination the ACA prohibits, and that Section 1557 prohibits discrimination in benefit design Prior to the ACA, private health insurers could frequently discriminate in the administration and design of health care benefit plans with few federal legal consequence. The business model of health care by denying coverage to individuals with high health needs or who would otherwise be costly to the plan. The ACA included changes to insurance specific to many of the common methods of disability discrimination in insurance that had been allowable under existing protections against disability discrimination, including denying enrollment, limiting benefits, and imposing high premiums and special cost-sharing on enrollees with disabilities and preexisting conditions As an integral component of these reforms, Congress included Sec. 1557, which deliberately extended civil rights protections to the private health insurance context. While the ACA addressed many of the discriminatory coverage provisions previously allowed under the ADA and Section 504, Sec. 1557 explicitly created a right to enforce noncare. It also clearly did not bring in any of the exemptions from those other laws so that the sea change in non-discrimination in health care under the ACA would be clear. In its 2016 regulations implementing Sec. 1557, HHS prohibited the administration of discriminatory health insurance plans, including discrimination in benefit design. Yet the final rule did not define the id it describe what would constitute disability-based discrimination in benefit design outside of a footnote and identifying factors OCR would use when determining whether a benefit design is discriminatory. These factors included whether a neutral principle or rule was used and evaluating the reasons for any difference in coverage. However, as the U.S. Supreme Court has recognized, a neutral rule or principle may still run afoul of the ADA. 19 A critical requirement of nondiscrimination on the basis of disability is that a reasonable accommodation or modification may be required so that the individual with a disability may enjoy equal access to the program or service at issue, even if that accommodation may provide preference or treat that individual differently that is the point of such provisions. The application of Sec. 1557 to the benefit design of health care coverage is one of the most significant protections of the law. The decisions of states and private insurers concerning how healthcare benefits are designed, including decisions about what services are covered and how provider networks are structured, may discriminate based on disability or other protected factors in a variety of important ways. For example, adverse tiering of prescription drugs, coverage exclusions of services for certain diagnoses (e.g., hearing loss or autism), narrow provider networks that exclude certain specialists, arbitrary or unreasonable utilization management, coverage distinctions not justified by actuarial data or that relies on discriminatory data, and coercive wellness programs that prevent participation by persons with disabilities.
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