Notice & Comment

Race (and Other Vulnerabilities) in Healthcare and Administrative Law, by Renée M. Landers

In his comprehensive work, A History of American Law, Lawrence M. Friedman identifies the roots of the modern welfare system in the poor laws of the colonies.[1] Descended from laws of Elizabethan England with the same label, colonial law established a system of “discriminating against the unfortunate stranger.”[2] New England towns would “warn out” new arrivals to disclaim any responsibility if the newcomer fell on hard times and to place “the burden of support back on the former place of settlement.”[3]  After independence, this practice continued, fixing responsibility on local government units for maintaining their own poor.[4] Private charity in the form of church groups, extended family, and friends provided relief for “the helpless” in a manner inadequate to the need.[5]  Presaging opinions today wary about enhanced unemployment benefits during the COVID-19 pandemic, some argued that poor relief only encouraged idleness—in the form of the apocryphal “sturdy beggar.”[6]

By the nineteenth century, the federal government established a tradition of disaster relief, and “[t]he general public, like Congress, tended to be relatively generous to sufferers who were socially defined as blameless—the sick, the old, the deaf, dumb, the insane,” but the pauper, particularly the stranger, “had no such claim to public sympathy.”[7]  Some thought relief laws should be punitive to make poverty unpalatable.[8]

Fast forward to the twentieth century and the federal government took a big step forward in providing programs to help vulnerable populations with the enactment of the Social Security Act in 1935 which created the familiar pension plan for senior citizens and other programs to help people with vision impairment and other disabilities.  In the 1960s assistance expanded significantly with the creation of the Medicare program to provide health care to persons over 65 and people with disabilities, and the Medicaid program to serve low-income people—the signature accomplishments of Lyndon Johnson.[9]  

This brief and telescoped history of social insurance and welfare programs offers an explanation for current exclusions of “the other” from government’s protection and investment. In addition to the “stranger” or “new arrival,” the “other” has long included people of color, people who do not conform to conventional sex-role stereotypes, and the noncitizen immigrant.  Today’s racially disparate income inequalities and disparities in health care and health status due to race, gender, and other characteristics are predictable results of this history. The disparate impact of the COVID-19 crisis on communities of color has sharpened the focus on the health inequities, income disparities, and myriad other social determinants of health such as lack of access to quality education, housing, transportation, healthy food, and healthy environment that stunt the potential of people of color.[10] Administrative law enables the perpetuation of these inequities, but also has the opportunity to mitigate and correct them.  This essay will focus on particular aspects of three of the major social insurance programs—Social Security, Medicare, and Medicaid. 

The Social Security Act of 1935 famously excluded about half the workers in the American economy from coverage—notably agricultural and domestic workers—a large percentage of whom were African Americans.[11] Scholars debate whether the exclusions of these categories of workers reflected racial animus or a concern for avoiding administrative complexity.[12] Regardless of the motivation, the disparate impact on black workers reduced their access to retirement benefits available to other workers for some time.  Amendments to the statute in the 1950s extended coverage to some among these categories of workers.[13]  

Social Security reduces overall poverty rates among individuals over age 65.  Without Social Security, 38% would live in poverty, but including Social Security income, the level drops to 10%.  The racial disparity in retirement wealth remains substantial. Among people in that age group, 7% of whites, 19% of Latino, and 19.5% of Blacks face poverty.[14] Even with access to Social Security, these disparities persist because people of color are more likely to work in low-wage jobs with little opportunity for savings and to participate in private pension programs.[15] Pointing out these disparities is a critique of the continued racial disparities in employment opportunities and the statutory design of Social Security, perhaps enabled by weak administrative enforcement in employment and related areas.  The role of the agency in producing data is essential to identifying the problems and proposing policies to address the disparities.  Eliminating the payroll taxes that fund the Social Security and Medicare Trust Funds as President Trump has proposed in the guise of pandemic relief is not among the ways to address these problems.[16]

Federal health programs more explicitly permitted discrimination until the mid-twentieth century.  Administrative action played a major role for a time in correcting the issue. As I have written previously,[17] health care in the United States has been racially divided.  David Barton Smith’s classic work, Health Care Divided: Race and a Healing Nation, recounts this history.[18] Federal policies first reinforced, then mitigated, some of the racial discrimination in health care.  President Harry Truman’s executive orders in 1948 ended racial discrimination in federal employment and segregation in the armed services.[19]  These orders applied to Veterans Administration hospitals and other federal facilities.[20] By the time the Supreme Court decided Brown v. Board of Education in 1954, the VA hospitals no longer provided any accommodations segregated by race.[21]  During the 1960s, the Kennedy administration increasingly conditioned federal grants to medical schools, and the hospitals they operated, on a requirement of desegregation.[22]

The story was different for private hospitals.  For example, the Hill-Burton Act, providing federal matching funds for hospital construction, expressly permitted the construction of racially segregated facilities.[23]  This provision was successfully challenged after the Brown decision.  Title VI of the Civil Rights Act of 1964 prohibited organizations receiving federal funds from discriminating on the basis of race, color, or national origin.[24]  With the creation of the Medicare program in 1965, the federal government had the opportunity to enforce Title VI against hospitals.  Within four months, more than 1,000 hospitals integrated their medical staffs, waiting rooms, and hospital floors.[25]  The Office of Civil Rights in what was then the Department of Health, Education, and Welfare (HEW), now Health and Human Services, led the effort to desegregate hospitals at the inception of the Medicare program, but civil rights enforcement in health care settings has been less energetic since. 

For example, a 1963 legal interpretation from HEW exempted physicians participating in Medicare from complying with Title VI.  HEW defined Part B of the Medicare program, which covers physician services for beneficiaries, as a “contract of insurance” between the beneficiary and the government instead of a direct payment of federal funds to the physician.[26] This interpretation created a barrier to addressing more subtle forms of discrimination in health care.  Because primary care is more separate and more unequal than hospital care, the agency interpretation contributes to disparities in initial access and in referrals for diagnostic and other specialized services.[27]

As in other areas of national life, discrimination in health care now takes more subtle forms.  Geographic residential segregation, as with disparities in education, contributes to disparities in health care as in the issues with primary care already mentioned.  Relocations of hospitals from urban areas to suburban locations enabled by state regulators provide evidence of the same element of “white flight” that plagues public education.[28]  One example of this phenomenon is the 1980 relocation of Lahey Clinic from the Boston medical area bordering areas of the city with large populations of people of color to suburban Burlington, Massachusetts.  In 2010, the composition of Burlington’s population was 79% white, with 13% Asian Americans and 3% Black.  In 2017, the Massachusetts Attorney General approved a merger between Lahey Hospital & Medical Center and Beth Israel Deaconess Medical Center despite concerns about market concentration expressed by the Massachusetts Health Policy Commission and community groups.[29]  The Attorney General conditioned the approval on the merged entity’s commitment to use “good faith efforts” to enroll all licensed providers in MassHealth—the Commonwealth’s Medicaid program, to place no limit on MassHealth patients, and to engage in advertising to increase MassHealth patients.[30]  In addition, the merged entity is required to spend to improve access to health care for low-income and underserved communities by supporting community health centers and safety net hospitals.  The Federal Trade Commission also had concerns about market concentration, but deferred to the Attorney General.  Other than required reports for 10 years following the merger, the enforcement mechanism for the entity’s failure to satisfy the conditions is unclear.  

The conditions on the Lahey/BIDMS merger recognize that the locations of primary care services as well as hospitals create barriers to access to care for vulnerable communities.  As care migrates from hospitals to hospital-affiliated urgent care or primary care centers, hospitals may seek locations in communities with access to large commercially insured populations to maximize revenue opportunities because the Medicare and Medicaid payment rates for the same services are lower.  An opportunity exists here for regulators at all levels of government to demand that hospitals seeking approvals for ambulatory care centers also choose locations in underserved communities.[31]

These examples indicate that proving intentional discrimination as a motivating factor for many decisions would be difficult.  In 2001, the Supreme Court made the task even harder, ruling in  Alexander v. Sandoval that no private right of action is available for claims alleging disparate impact of facially neutral policies and practices.[32]  Only the Office of Civil Rights is able to bring disparate impact claims.[33]  This case seems to be part of the larger project of the Supreme Court’s conservative members to limit access to courts with restrictive rules on standing and endorsing expansive arbitration clauses in consumer and employment contracts. 

A provision of the Patient Protection and Affordable Care Act (ACA) enacted in 2010 specifically prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.[34]  This provision builds on other Federal civil rights laws, Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975. Section 1557 extends nondiscrimination protections to individuals participating in:

  • Any health program or activity any part of which received funding from HHS
    • Any health program or activity that HHS itself administers
    • Health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces.

The HHS Office of Civil Rights engaged in a rulemaking process to implement Section 1557. In an extensive Final Rule issued in 2016, HHS addressed existing nondiscrimination requirements and turned a particular focus on the prohibition of sex discrimination in health programs.[35] While the rule broadens the definition of “federal financial assistance” to include payments insurers receive in the form of premium tax credits, the rule did not change the status of Part B payments to physicians even though the agency received comments on the proposed rule urging that Part B payments be included in the definition of “federal financial assistance.”  At the suggestion of Dayna Matthew, I submitted such a comment. In the preamble to the final rule, HHS dismissed these comments stating that “OCR notes commenters’ concerns, but does not believe that this rule is the appropriate vehicle to modify the Department’s position.“[36]  In refusing to change the proposed rule to respond to the comments, HHS acknowledged, however, that Section 1557 covers “contracts of insurance” and that under the current Medicare Part B payment scheme providers receive direct payment from the Medicare program instead of receiving payment from consumers who would then be reimbursed by the Medicare program.”[37]

I give my comment letter and the agency’s response to my students as an example for a comment letter writing assignment in Administrative Law, and the students are always dismayed that the agency’s response to the comment was so dismissive in that it did not address the substance of the comment.  The opportunity to provide comments forces the agency to acknowledge an issue, but the Administrative Procedure Act framework does not require the agency really to engage with an issue it just prefers to ignore.  Perhaps Medicare payments do not have to do all the work, however, as physicians receiving support for the transition to electronic health records or Medicaid payments may be captured by §1557 or other antidiscrimination laws based on receipt of federal funds from these other sources.

The recent history of the §1557 regulations is worth recounting. The principal area of contention focused on the regulation’s definition of sex discrimination as a source of protection for LGBT individuals who, like people of color, society historically categorized as “other.” 

A coalition of states and healthcare providers successfully challenged the 2016 Rules in the Northern District of Texas, arguing that HHS exceeded its authority under §1557 in defining discrimination “on the basis of sex” to include discrimination based on gender identity.  In Franciscan Alliance, Inc., v. Burwell, the court enjoined enforcement of that provision of the rules on December 31, 2016, holding that the HHS definition was not entitled to Chevron deference because the text of the statute was neither silent nor ambiguous.[38] After Trump took office in January 2017, HHS did not appeal the preliminary injunction and the rules were subsequently vacated.[39]

By 2020, HHS had completed a rulemaking to replace the vacated 2016 Rule.  The 2020 Rule eliminated the provision protecting patients from discrimination on the basis of sexual orientation or gender identity.[40]  After HHS submitted the new rule for publication, but before its effective date, the Supreme Court issued its decision in Bostock v. v. Clayton Cnty, Ga., which concluded that discrimination on the basis of sex encompassed discrimination based on both sexual orientation and gender identity.[41]  HHS stubbornly declined to withdraw the rule despite the Supreme Court’s decision. 

On August 17, in a challenge brought by two transgender women, a federal district court enjoined the 2020 repeal of the definition of discrimination on the basis of sex in the 2016 Rule, holding that the repeal was contrary to law and arbitrary and capricious because the agency failed to consider an important aspect of the problem—the Bostock decision—citing State Farm.[42]  Along the way to this seemingly obvious conclusion, the district judge noted that the agency’s apparent confidence that the Supreme Court would endorse the Administration’s interpretation of sex discrimination “was misplaced” and that the agency’s argument that the rule remained valid was “disingenuous.”[43] The upshot is that the New York decision did not revive the “gender identity” protection previously vacated in the Franciscan Alliance case, but the 2016 protections of “gender identity” and “sex stereotyping” remain in effect.[44]  

The 2016 Rule implementing §1557 also contained provisions reinforcing the background law on providing “meaningful access” to programs and services for individuals with limited English proficiency (LEP).[45] In 1974 the Supreme Court ruled that Title VI regulations prohibit conduct that has a disproportionate effect on individuals with limited English proficiency as a form of national origin discrimination.[46] The 2020 Rule eliminates some of the 2016 requirements, notably the obligation to distribute nondiscrimination notices and taglines containing brief nondiscrimination statements in the 15 non-English languages most frequently spoken by individuals with limited English proficiency in the areas where the entity operates.  The website, significant publications, and the office locations had to provide these taglines.  Now entities are required only to provide the information when necessary to provide meaningful access.  Consistent with the Trump Administration’s deregulatory goals, HHS justified the change as removing “costly and unnecessary regulatory burdens” and estimated reductions in costs at $2.9 billion over the next five years, and an overall savings rate of $2.6 billion.[47]  Aspects of the 2020 Rule also return the enforcement structure for all the relevant Civil Rights statutes to the status existing before the 2016 Rule and limits the reach of enforcement.  All of these provisions are likely to be the subject of challenge, and the same administrative law doctrines at work in the Walker case—whether the regulations are consistent with law and are arbitrary and capricious—will be relevant.

As noted at the outset, the Medicaid program makes provision for access to healthcare for low-income populations.  Originally, it covered only the aged, blind, persons permanently and totally disabled, and caretakers of dependent children. Later, pregnant women and all low-income children were added.  These eligibility criteria reflected historical efforts to identify the “deserving” or “worthy” poor. The ACA expanded Medicaid coverage to include all low-income persons having incomes less than or equal to 138% of the federal poverty line.  The concept was to require states to expand their participation in the Medicaid program to include all low-income populations and to establish the principle that merely being poor was sufficient to qualify for government help, but the Supreme Court famously ruled in the NFIB v. Sebelius case that conditioning the traditional Medicaid payments to states on coverage of the expansion population was unconstitutionally coercive.[48]  As a result of making adoption of the expansion optional, to date, 28 states plus the District of Columbia have expanded, 7 states have expanded with a waiver—more on that shortly—three recently adopted expansions through ballot initiative, and twelve states have not expanded.  The states that have not expanded include the Texas and the southern states east of it, except for Louisiana and Arkansas, as well as Kansas, South Dakota, Wisconsin, and Wyoming.  Studies show that the Medicaid expansion improves access to care, affordability of care, and financial security among low-income populations.  Many of the states that have not adopted the expansion have some of the highest populations of Blacks and Hispanics in the country and some of the poorest measures on general population health.  While the Families First Coronavirus Response Act makes provision for a 6.2% increase in federal Medicaid funding for qualifying states and federal support for other COVID-19 expenditures, the disruption and increase in the Medicaid population due to unemployment will outstrip these appropriations.[49]

Nationally, the Medicaid population is 41% white, 20% black, 30% Hispanic, 4% Asian/American or Pacific Islander, and 1% Native American.[50]  The Census figures for 2019 indicate that nationally whites comprise 76.3%, blacks 13.4%, Native Americans 1.3%, Asian Americans 5.9%, Native Hawiaians/Pacific Islanders .2%, Hispanic or Latino 18.5%, nonHispanic whites, 60.1%.  These statistics mean that, while whites are a majority of Medicaid recipients, blacks and Hispanics are over-represented in the Medicaid population in relation to their representation in the population as a whole.  Of course, these percentages vary considerably by state consistent with the composition of a state’s population.  For example, in Iowa, 70% of Medicaid recipients are white, 9% are black, and 13% are Hispanic. In Arkansas, 59% are white, 25% black, and 10% Hispanic.  The Alabama Medicaid population is 45% white, 43% black, and 8% Hispanic.  In Massachusetts, 47% are white, 13% are black, and 30% are Hispanic.  Approximately 7% of the population, or 23 million people, are undocumented immigrants who are ineligible for Medicaid or any other federal public health program, except emergency care.   This absence of resources is a threat to the entire country when a highly communicable disease is circulating. 

State Medicaid programs exhibit a great deal of variation, and, additionally, the Medicaid statute makes provision for states to apply for waivers from certain program elements for demonstration projects.  States have used waivers to experiment with different coverage options and financing and delivery reforms.[51]  The statute authorizes the Secretary to approve “any experimental, pilot, or demonstration project which, in the judgment of the secretary, is likely to assist in promoting the objectives” of Medicaid.[52]  During the Trump Administration, the Centers for Medicare and Medicaid Services in HHS has approved state requests for the ability to attach work requirements to the eligibility criteria for Medicaid.[53]   The notion of work requirements echoes the efforts since colonial times to ensure that public support is not expended on the “sturdy beggar,” “the able-bodied adult,” or the freeloader who just chooses not to maintain gainful employment. 

In February 2020, the D.C. Circuit, in Gresham v. Azar, invalidated the Arkansas waiver approved by HHS Secretary Alex Azar which authorized Arkansas to impose work requirements as inconsistent with the primary purpose of the Medicaid statute.[54] The statute provides that the purpose of Medicaid is

to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services, and (2) rehabilitation and other services to help such families and individuals attain or retain capability for independence or self-care.[55]

The HHS letter approving the Arkansas waiver identified three objectives that Secretary Azar asserted Arkansas Works would promote: improving health outcomes; addressing behavioral and social factors that influence health outcomes; and incentivizing beneficiaries to engage in their own health care and achieve better health outcomes.  The approval letter opined that the Arkansas community engagement requirements would encourage beneficiaries to obtain and maintain employment or other activities that correlate with improved health and wellness.[56]  

In an opinion by Judge Sentelle, the D.C. Circuit panel rejected the agency’s argument that the Secretary’s discretion in granting waivers was unreviewable, citing Citizens to Preserve Overton Park, Inc., v. Volpe[57] and Dep’t of Commerce v. New York[58] for the proposition that the APA exception from judicial review for an action committed to agency discretion is “very narrow.”  The court stated that the Medicaid statute reflected Congress’s clear purpose to provide health care coverage, and that under Chevron, the agency was required to give effect to the unambiguously expressed intent of Congress.[59] The opinion rejected an effort to characterize the Secretary’s approval as helping the Medicaid population gain financial resources to purchase insurance as a “post hoc rationalization” citing State Farm.[60]

The final part of the court’s opinion concluded that the approvals of the Arkansas work requirements were arbitrary and capricious for failure to address important aspects of the problem, again relying on State Farm.[61]  Here, the court noted the agency’s failure to account for loss of coverage—“a matter of importance under the statute.”  About 25% of persons subject to work requirements lost coverage in five months.  The court noted that while “it is not arbitrary and capricious to prioritize one statutorily identified objective over another, it is an entirely different matter to prioritize non-statutory objectives to the exclusion of the statutory purpose.”[62]

Social Security’s role in addressing inadequate and disparate income among retirees, however necessary, is an indication of the weaknesses in the nation’s social insurance infrastructure.  The COVID-19 crisis has exposed weaknesses also in the unemployment, workers’ compensation, longterm care, and family leave components of this infrastructure.  HHS’s refusal to bring Medicare Part B payments within the definition of “federal financial assistance” is an example of the resilience of historical legacies of racial exclusion in the face of daunting disparities in access to healthcare. Regulators at all levels of government should be willing to condition approvals for location of healthcare facilities on enforceable commitments to serve communities of color and other underserved populations.  Relying on the Office of Civil Rights as the sole enforcer when the disparate impact of policies is the problem, not intentional discrimination, limits the power of the civil rights laws to protect access to health care.  The struggle to provide protection against discrimination in healthcare for individuals who do not conform to traditional sex-role stereotypes reflects the effort of some to identify and exclude the “other” from government protection.  Reducing requirements to provide translated information elevates financial savings and convenience for healthcare entities over enhancing access for persons with limited English proficiency. Efforts to condition Medicaid eligibility on work requirements that Congress did not authorize continues the 400 hundred year old practice of trying to reserve government support for the “worthy poor.”  That judicial review of agency actions employing the arbitrary and capricious standard—requiring agencies to adhere to the statutes they administer and to provide a rationale for actions with reference to the relevant statutes and judicial doctrines articulated in Overton Park and State Farm—provides a surprising, if modest, cause for optimism for the future.

Renée M. Landers is Professor of Law and Director of the Health Law Concentration at Suffolk University Boston. 

[1] Lawrence M. Friedman, A History of American Law 49-50 (3d ed. 2007)[Hereinafter Friedman]. 

[2] Id. at 50.

[3] Id. This idea of tying assistance to the former place of residence appeared in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the Clinton-era welfare restructuring statute, which purported to authorize states to limit welfare benefits for new residents to the level of the benefits to which the residents would be entitled in the state from which they had moved for one year.  In reviewing a challenge to a California law embodying this practice, the U.S. Supreme Court invalidated the concept as a violation of the right to travel protected by the privileges and immunities clause of the Fourteenth Amendment. Saenz v. Roe, 526 U.S. 489 (1999).  

[4] Friedman, supra note 1, at 150.

[5] Id.

[6] Id.  Contemporary popular culture uses this trope. For example, PBS airs a British comedy, “Keeping Up Appearances”, with a character, Onslow, who resides in council housing, occupies himself by watching racing on television, while his frustrated wife brings him the occasional beer.  Onslow prides himself on being “bone idle”.

[7] Friedman, supra note 1, at 151.

[8] Id. at 152.

[9] Id. at 508.

[10] See generally, Bethany Cole, The Impact of the COVID-19 Pandemic on Access to Health Care, National Academy of Social Insurance Health Policy Brief (July 2020) available at’s%20Impact%20on%20Access%20to%20Care.pdf.  See also, Nadia Abuelezam, presentation for Boston College AHANA Alumni Advisory Council program on Racial Health Disparities & COVID-19 (August 13, 2020), recording available at

[11] Larry DeWitt, The Decision to Exclude Agricultural and Domestic Workers from the 1935 Social Security Actavailable at

[12] Id.

[13] William J. Nelson, Employment Covered Under the Social Security Program, 1935-84

[14] Top Ten Facts About Social Security, Center for Budget and Policy Priorities, available at  

[15] Id.

[16]Alan Rappeport, Trump Wants Companies to Foot Payroll Tax Bill for Workers, N.Y. Times, August 27, 2020, available at

[17] Renée M. Landers, Massachusetts Health Insurance Reform Legislation:  An Effective Tool for Addressing Racial and Ethnic Disparities in Health Care?, 29 Hamline J. Pub. L. & Pol’y 1 (2007)[hereinafter, Landers].

[18] David Barton Smith, Health Care Divided:  Race and a Healing Nation (1999).

[19] Id. at 143-87.

[20] Id. at 318.

[21] David Barton Smith, Racial and Ethnic Health Disparities and The Unfinished Civil Rights Agenda, 24 Health Aff. 317 (Mar.Apr. 2005)[hereinafter Smith, Unfinished Civil Rights Agenda].

[22] Id. at 319.

[23] Id.

[24] 42 U.S.C §§ 2000d-2000d-7.

[25] Smith, Unfinished Civil Rights Agenda, supra note 21, at 320.

[26] See, Landers, supra note 17, discussion and sources cited at 10, n.43 and accompanying text.

[27] Smith, Unfinished Civil Rights Agenda, supra note 21 at 321.

[28] Id.

[29] For another example, see, Bryan v. Koch, 627 F.2d (2d Cir. 1980) (while holding that plaintiff’s challenging closure of New York City hospital located in Harlem had shown a disproportionate racial impact though not intent to discriminate, court nevertheless upheld denial of injunction to block closure because city was not required to examine all other alternatives).

[30] Press Release, Office of Massachusetts Attorney General Maura Healey, AG Healey Reaches Settlement With Beth Israel, Lahey health Over Proposed Merger, (November 29, 2018) available at,price%20cap%20and%20%2471.6%20million.

[31] See, Press Release, U.S. Department of Health and Human Services, UPMC Agrees to Expand Access to Care After Closure of UPMC Braddock (Sept. 2. 2010)(responding to complaints about a decision by the University of Pittsburgh Medical Center to relocate a hospital from a predominantly African-American community to a predominantly white area, OCR able to persuade UPMC to provide transportation services to the new facilities and to expand support for primary and urgent care services near the former location) cited in Barry R. Furrow, et al., The Law of Health Care Organization and Finance 203 n.6 (8th ed. 2018)[hereinafter Furrow, et al.].

[32] Alexander v. Sandoval, 532 U.S. 275 (2001).

[33] Speech, Thomas Perez, Director, Office for Civil Rights, Discrimination and Health Disparities (Apr. 13, 1999)(describing practices with disparate impact) discussed in Furrow, et al., supra note 31, at 203 n. 6.

[34] Section 1557 of ACA, 42 U.S.C. § 18116.

[35] Furrow, et al., supra note 31, at 223 (describing Final Rule, Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31375 (May 18, 2016)) (codified at 45 C.F.R. Part 92).  

[36] Nondiscrimination in Health Programs and Activities; Final Rule, 81 Fed. Reg. 31375, 31383 (May 18, 2016) (codified at 45 C.F.R. Part 92)[Hereinafter 2016 Final Rule] .  For an interesting observation about preambles to regulations see, Walker v. Azar, 8/17/2020, (slip op. at n. 3) (E.D. NY August 17, 2020): “The preamble to many regulations contains thousands of words, and the 2020 Rules are no exception. The preamble to the Constitution, by contrast, contains only 52.” 

[37] 2016 Final Rule, 81 Fed. Reg. at 31383.

[38] Franciscan Alliance, Inc. v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016) (discussed in Walker v. Azar, 8/17/2020, (slip op. at 5) (E.D. NY).

[39] Walker v. Azar, at 6.

[40] Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37160 (June 19, 2020, effective August 18, 2020).  

[41] 140 S. Ct. 1731, 1743 (2020).

[42] Walker v. Azar, at 25 – 26.

[43] Id. at 11 and 21.

[44] Katie Keith, Court Vacates New 1557 Rule That Would Roll Back Antidiscrimination Protections for LGBT Individuals, Health Affairs Blog, August 18, 2020, available at

[45] Exec. Order No. 13,166, Improving Access to Services for Persons with Limited English Proficiency, 65 Fed. Reg. 50121 (August 11, 2000).

[46] Lau v. Nichols, 414 U.S.563 (1974).  

[47] U.S. Dep’t of Health and Human Services, Fact Sheet:  HHS Finalizes ACA Section 1557 Rule, available at

[48] National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).

[49] Bethany Cole, The Impact of the COVID-19 Pandemic on Access to Health Care, National Academy of Social Insurance Health Policy Brief(July 2020) available at’s%20Impact%20on%20Access%20to%20Care.pdf.  

[50] Kaiser Family Foundation, Distribution of the Nonelderly with Medicaid by Race and Ethnicity, available at,%22sort%22:%22asc%22%7D(2018).

[51] Furrow, et al., supra note 31, at 435.

[52]Section 1115 of the Social Security Act, codified at 42 U.S.C. § 1315 (a). 

[53] Kaiser Family Foundation, Medicaid Waiver Tracker:  Approved and Pending Section 1115 Waivers by State (August 26, 2020) available a (“Federal officials have approved work requirement proposals in seven states — Arizona, Arkansas (invalidated by court), Indiana, Kentucky (invalidated/withdrawn), Michigan(invalidated), New Hampshire (invalidated) and Wisconsin. In each of those states, the requirements would apply only to people who gained Medicaid coverage under the expansion authorized by the Affordable Care Act. Ten other states — Alabama, Kansas, Mississippi, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and Virginia — also have requested approval. Some of those states have not expanded Medicaid and are seeking to add work requirements to their regular programs.”)

[54] Gresham v. Azar, 950 F. 3d 93 (D.C. Cir. 2020).

[55] 42 U.S.C § 1396-1.

[56] Gresham, at 97.

[57] 410 U.S. 402, 410 (1971).

[58] 139 S. Ct. 2551, 2568 (2019).

[59] Gresham, 950 F.3d at 100, citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

[60] Gresham, 950 F.3d at 101, citing State Farm, at 50.

[61] Gresham, 950 F.3d at 102, citing State Farm, at 43.

[62] Gresham, 950 F.3d. at 102.

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