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Short Analysis
June 2019

Trump Administration Proposes to Undo Nondiscrimination Protections in Health Care

The U.S. Department of Health and Human Services has proposed a new rule to severely weaken the Affordable Care Act’s prohibitions against discrimination in health care, and to erase references to protections against discrimination by health care programs on the basis of gender identity or sex stereotype in regulations. These protections are provided under Section 1557 of the Affordable Care Act and its regulations. The law has not changed, but the proposal would undercut protections by weakening the regulations.

The proposal specifically threatens access to care for certain population groups:

More broadly, the proposal would severely weaken all of the Affordable Care Act’s anti-discrimination protection regulation by:

  1. Narrowing the types of health care programs and health insurers that are required to comply. Currently, any health program or activity any part of which received funding from HHS, or is administered by HHS must comply (not just the specific part of a health facility or health program that received federal money); and all health plans that are offered by insurers that participate in health insurance marketplaces must comply (not just the insurer’s marketplace plan). Under the proposed rule, though health insurance plans that receive tax credits would still be required to comply with nondiscrimination requirements, a health insurance company could decide to sell one compliant plan that gets tax credits and another health plan that discriminates. Further, under the proposed rule, section 1557’s nondiscrimination provisions would no longer apply to programs that get funding from other parts of HHS, such as the Centers for Disease Control and Prevention, the Health Resources and Services Administration, the Substance Abuse and Mental Health Services Administration, or the Indian Health Service.
  2. Eliminating notice requirements that tell people their rights and explain how people with limited English proficiency can get important documents translated into their languages.
  3. Eliminating a private right of action that allows people who have been discriminated against by a health care program or facility to go to court for relief.

Taking Action to Preserve Nondiscrimination Protections

HHS issued a fact sheet on May 24 and published its proposed rule in the Federal Register on June 14. The public can comment on the proposal until August 13. Many civil rights groups and health care groups will be commenting, and Families USA will help you connect to these experts and sample comments you can use to inform your own submissions. These include the Transgender Law Center and National Center for Transgender Equality, ActionLink and National Women's Law Center.

Consumers’ Rights Remain in Place Currently

Meanwhile, it is important for consumers to know that they still do have rights under Section 1557 of the Affordable Care Act as well as under other laws that prohibit discrimination on the basis of race, color, national origin, gender, age, or disability. A 2016 court case, Franciscan Alliance, Inc. et al v Burwell, enjoined HHS from enforcing the Section 1557 regulation’s prohibition against discrimination on the basis of gender identity and termination of pregnancy – but litigation of that case continues and individuals continue to bring cases to courts concerning discrimination on those grounds. The HHS Office of Civil Rights still takes complaints about other forms of health care discrimination under Section 1557, and consumers can still go to court to enforce their rights. Consumers who experience discrimination in health care may want to consult attorneys about how to best get relief.

Additionally, the Trump Administration rule is still in proposed form and has not yet taken effect. Advocates are working to submit thousands of comments to push back against its implementation. Submit your comments here by August 13, 2019.

Trump Administration Proposes to Undo Nondiscrimination Protections in Health Care | Families USA

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