by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Department of Health and Human Services’ Office for Civil Rights has proposed a rule that, if adopted, would dramatically expand federal regulatory power over private health plans and medical providers. The proposed rule would implement section 1557 of the Affordable Care Act (prohibiting discrimination in health programs “receiving federal financial assistance”) in a manner that reinterprets anti-discrimination statutes from ensuring that individuals are not denied access to whatever benefits a plan might provide into legal requirements that plans provide specified benefits. Thus, determinations of the medical “necessity” or “appropriateness” of coverage and treatments would be subordinated to determinations by federal regulators or judges of prohibited “discrimination.” Their decisions would effectively impose new health insurance benefit mandates and, under the rule’s broadly defined scope, those mandates would be imposed not only on Medicare and Medicaid but also on unsubsidized individual and employer plans covering another 164 million Americans.