Unfulfilled Promises: Discrimination and the Denial of Essential Health Benefits Under the Affordable Care Act

49 Pages Posted: 20 Jul 2019

Date Written: April 5, 2016


The Patient Protection and Affordable Care Act (ACA) promised to revolutionize health care in the United States. Central to this promise were the Act’s core guarantees of essential health benefits and nondiscrimination in insurance coverage. Congress directed the Department of Health and Human Services (HHS) to issue regulations and enforce the ACA’s core guarantees, but in the five years since the Act’s passage, HHS has relinquished much of its regulatory authority to the states, allowing them to decide what types of conditions and treatments must be covered by insurance plans henceforth. Not surprisingly, states have reached disparate, and sometimes contradictory, conclusions about the meaning of the ACA’s core guarantees, leading to significant interstate variation in insurance coverage of many health conditions. In some instances, states’ interpretations of the core guarantees conflict with the plain language of the Act. This article highlights the resulting inequities in insurance coverage by focusing on one of the many medical conditions about which states disagree: obesity. States that do not require health plans to cover obesity and medical weight-loss treatments disregard the ACA’s mandates compelling nondiscrimination on the basis of disability, nondiscrimination on the basis of sex, and coverage of all essential health benefits. As a result, this article argues that HHS urgently needs to promulgate a federal benchmark plan that defines the minimum level of treatment coverage that the Act requires insurance plans to provide. Unless HHS takes back its regulatory authority and standardizes requirements nationwide, states will continue to misconstrue the language of the Act, and for many Americans, the promise of revolutionizing health care will remain unfulfilled.

Keywords: obesity, affordable care act, discrimination, health care, agency regulation

Suggested Citation

Shinall, Jennifer Bennett, Unfulfilled Promises: Discrimination and the Denial of Essential Health Benefits Under the Affordable Care Act (April 5, 2016). DePaul Law Review, Forthcoming; Vanderbilt Law and Economics Research Paper No. 16-9; Vanderbilt Public Law Research Paper No. 16-25. Available at SSRN: https://ssrn.com/abstract=2759468

Jennifer Bennett Shinall (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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