Senator Patty Murray's office issued the following:
Murray and Cantwell
condemned the Trump-Pence Administration’s proposed rule to weaken
protections against health care discrimination
Proposed rule would undermine
health care protections for LGBTQ people, women, people with
disabilities, and people whose primary language is not English
Murray and Cantwell:
“In advancing policies that not only allow discrimination – but in fact
endorse it – HHS is abdicating its responsibility to enhance and
protect the health and well-being of all Americans”
WASHINGTON, D.C. – U.S. Senators Patty
Murray (D-WA), ranking member of the Senate Health, Education, Labor,
and Pensions Committee, Maria Cantwell (D-WA), and 34 of their fellow
Democratic senators submitted a comment letter for the record to
Department of Health and Human Services (HHS) Secretary Alex Azar
criticizing the Trump Administration’s proposed rule to weaken critical
protections that help address discrimination in health care. The
senators outlined several issues with the proposed rule, including how
it could harm patients who already face barriers when seeking care by
emboldening insurers and health care providers to discriminate against
them, and called on the Trump Administration to withdraw the proposal.
“Section 1557 of the ACA prohibits
discrimination on the basis of race, color, sex (including, but not
limited to, discrimination on the basis of pregnancy, false pregnancy,
termination of pregnancy, or recovery therefrom, childbirth or related
medical conditions, sex stereotyping, and gender identity), national
origin, age, disability, and language proficiency. The proposed rule
attempts to eliminate protections against discrimination for those who
already struggle to access quality, affordable health care services. In
advancing policies that not only allow discrimination – but in fact
endorse it – HHS is abdicating its responsibility to enhance and protect
the health and well-being of all Americans,” wrote the Senators.
The letter is just the most recent step taken by
Senator Murray, the ranking member of the Senate Health, Education,
Labor, and Pensions Committee, and Senator Cantwell to combat President
Trump and his administration’s attacks on health care for millions of
families in Washington state and across the country. In just the last
month, the Senators unveiled a resolution to save pre-existing condition protections from a harmful Trump Administration rule, and demanded
the reversal of the Trump Administration’s new gag rule that
compromises the Title X family planning program. Additionally, both
Senators Murray and Cantwell called out President Trump and Republicans for their reckless lawsuit to eliminate vital healthcare protections.
Read the full letter below or access the PDF version HERE:
August 13, 2019
The Honorable Alex M. Azar II
Secretary
U.S. Department of Health and Human Services
200 Independence Avenue SW
Washington, DC 20201
RE: Comment on Notice of Proposed Rulemaking,
RIN 0945-AA11, Nondiscrimination in Health and Health Education Programs
or Activities
Dear Secretary Azar:
We write to oppose the Department of Health and
Human Services’ (HHS or the Department) proposed regulations
implementing Section 1557 of the Affordable Care Act (ACA), which was
published in the Federal Register on June 14, 2019.[1]
Section 1557 of the ACA prohibits discrimination on the basis of race,
color, sex (including, but not limited to, discrimination on the basis
of pregnancy, false pregnancy, termination of pregnancy, or recovery
therefrom, childbirth or related medical conditions, sex stereotyping,
and gender identity), national origin, age, disability, and language
proficiency. The proposed rule attempts to eliminate protections against
discrimination for those who already struggle to access quality,
affordable health care services. In advancing policies that not only
allow discrimination – but in fact endorse it – HHS is abdicating its
responsibility to enhance and protect the health and well-being of all
Americans.[2]
The proposed rule would narrow congressional
intent with regard to the broad purpose of Section 1557—eliminating
discrimination in health care. Congress’s intent in passing Section 1557
was clear: the law prohibits discrimination in any health program or
activity receiving federal funding. The text of Section 1557 leaves no
ambiguity in its goal by incorporating language from federal civil
rights statutes, reflecting Congress’s clear intent to prohibit both
intentional, intersectional and disparate impact discrimination in
health care.[3]
The protections guaranteed under Section 1557 are central to the ACA’s
broad goal of expanding access to health care by prohibiting
discrimination, by ensuring all patients, regardless of age, sex, or
pre-existing condition, no longer face barriers to care.
By deviating from the plain text of Section
1557, the proposed rule blatantly ignores the intent of Congress.
Instead of embracing the law’s goal of expanding access to care and
rooting out discrimination, the proposed rule attempts to narrow
protections only to programs and activities that receive direct federal
funding or are entities created under Title I of the ACA and
administered by HHS, which means private insurers and employer-sponsored
health plans sold outside of the Marketplace may be partially or
totally exempt and therefore assume they have license to discriminate.
As is abundantly clear from the legislative history of the ACA, the goal
of the law was to eliminate discrimination; yet, the proposed rule does
the opposite.
- 1. The Proposed Rule Attempts to Eliminate Protections for the Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Community
The protections guaranteed under Section 1557
are critical to the ACA’s goal of expanding access to health care
without discrimination on the basis of sex. The proposed rule removes
protections against discrimination on the basis of gender identity and
sex stereotyping. The preamble to the proposed rule misinterprets the
term “sex” to only “use explicitly binary terms such as ‘male and
female,’”[4]
and excludes forms of discrimination that are clearly sex-based. This
interpretation effectively encourages discrimination against
transgender, gender nonbinary, and gender nonconforming people who face
significant barriers to accessing quality, affordable health care.
Many transgender people are often harassed,
abused, denied care, or emotionally assaulted during hospital visits or
stays. According to the 2015 U.S. Transgender Survey, approximately
one-fourth of individuals surveyed reported problems with insurance
coverage as a result of their gender identity.[5]
Access to care appears to be particularly difficult for transgender
patients with a disability; approximately 40 percent of transgender
people with disabilities were more likely to have one negative
experience with health care providers, compared to 30 percent of
transgender people who did not identify as having a disability.[6]
Nearly one-quarter of people surveyed did not seek medical treatment
out of fear of being mistreated as a transgender person. In another
large national LGBT health survey conducted in 2010, 70 percent of those
surveyed reported health care providers refusing to touch them; using
harsh or abusive language; being physically rough or abusive; or blaming
them for their health status.[7]
The survey reported that approximately 27 percent of survey respondents
were denied health care due to being transgender. Survey respondents
also cited inappropriate staff behavior in hospitals, including
violations of confidentiality, regardless of the Health Insurance
Portability and Accountability Act of 1996 (HIPAA); long waits for care;
and inappropriate questions and intrusive exams. These experiences tend
to dissuade transgender people from seeking health care.
Moreover, the proposed rule also seeks to remove
“sexual orientation” and “gender identity” protections from numerous
Centers for Medicare and Medicaid Services (CMS) rules that are
unrelated to Section 1557 and some of which predate the ACA, going
beyond the scope of a rule intended to implement Section 1557.[8]
These CMS rules cover: non-interference with federal law and
non-discrimination standards; federally-facilitated exchange standards
of conduct; marketing by health insurance issuers; non-discrimination in
qualified health plans (QHP); refraining from misleading or coercive
behavior in QHPs; non-discrimination provisions for programs of
all-inclusive care for the elderly (PACE); specific rights for
participants in a PACE organization; enrollment non-discrimination for
CMS contracts; availability of services under CMS contracts; and
additional CMS access and cultural considerations. The Department offers
no explanation for packaging these proposed rule changes together,
except for the proposed rule’s objective to undermine protections for
LGBTQ patients.
Despite the significant barriers to care faced
by the LGBTQ community, the Department’s proposal could embolden
insurers and health care providers to discriminate on the basis of
sexual orientation and gender identity, contrary to Congressional
intent. The proposed regulation would allow health care providers and
insurers to make health care decisions based on personal beliefs rather
than the best interests of patients. Congress designed the ACA to
expand—not limit—access to comprehensive health care. And given the
structural barriers that exist for those who are transgender, it is
unconscionable that the Department would take proactive steps to
undermine and limit existing protections under the law.
- 2. The Proposed Rule Erodes Protections for Reproductive Rights
The proposed rule
attempts to undermine protections for reproductive health. Section 1557
protects against discrimination based on pregnancy, childbirth, and
related medical conditions, including termination of pregnancy and
miscarriage management. In passing Section 1557, Congress intended to
prohibit discrimination against a patient because of their medical
history or medical needs, including, for example, that they have had an
abortion or are seeking miscarriage management care. While the
Department acknowledges this protection, it does not clarify whether it
will enforce this protection. In refusing to do so, the Department could
open the door to discrimination that will leave women with limited
options when it comes to selecting a health care provider, particularly
in rural or underserved areas. The Department should clarify that it
will fully enforce protections for reproductive rights, as Congress
intended.
- 3. The Proposed Rule Unlawfully Attempts to Incorporate Exemptions from Other Laws that Contradict the Plain Language of Section 1557
The Department proposes to incorporate both the
Danforth Amendment and a religious exemption from Title IX into Section
1557. The text of the law is clear: Section 1557 incorporates the
grounds for discrimination from Title IX, but does not incorporate the
statutory text itself. By impermissibly incorporating exemptions from
Title IX, the proposed rule could lead to greater denials of care.
First, the proposed rule’s unlawful incorporation of the Danforth
Amendment is yet another attack by the Trump Administration on abortion
access and contradicts the plain language of the statute. Second, not
only is the proposed incorporation of an overly broad religious
exemption inconsistent with the plain language of the law, but it is
also particularly inappropriate in the context of a rule intended to
expand access to health care. For example, a provider could claim a
religious exemption in order to discriminate against an unmarried woman
seeking reproductive health care, even though such discrimination
would violate Section 1557’s prohibition against discrimination based on
sex stereotyping. An insurance company could try to claim the religious
exemption to avoid covering health services, such as certain fertility
treatments and transition related care. The proposed rule attempts to
expand refusals of care based on providers’ personal beliefs, which is
unlawful and contrary to congressional intent to protect
against discrimination in health care.
- 4. The Proposed Rule Attempts to Undermine Protections for People Whose Primary Language is not English and for People with Disabilities
The Department is proposing to eliminate the
requirement that covered entities provide notice to applicants,
beneficiaries, enrollees, and the public about the protections of
Section 1557 and how to enforce their rights. It also proposes to
eliminate requirements to inform people with limited English proficiency
(LEP) about the availability of language assistance services and
provide taglines while minimizing the potential costs to patients.[9]
The proposed rule will also exacerbate barriers to care for people with
disabilities. The proposed rule seeks to rescind provisions related to
the prohibitions on benefit design discrimination and changes the
standards for accessibility, which would leave people without access as
well as without accessible information about how to enforce their
rights.
The Department has not provided any clear or
specific arguments refuting the evidence and claims citied in the 2016
rule around the benefits of language and disability assistance services.
The Department claims that repealing the multi-language notice and
tagline requirements and provisions on benefit design and accessibility
contained in the 2016 final rule would have “negligible” impact. This
determination conflicts with the detailed findings in the 2016 rule
regarding the critical benefits of the notice and tagline requirements
for each state.[10]
The HHS Office for Civil Rights (OCR) found including notice and
tagline requirements “maximizes efficiency and economies of scale by
enabling covered entities to receive the benefits of having
multi-language taglines available without incurring the associated
translation costs.”[11]
The 2016 rule also noted that making the notices available “provides
flexibility while minimizing burden” and “helps provide greater access
for beneficiaries and consumers.” Without citing any support for their
claims or refuting the evidence provided in the 2016 regulation, the
Department now states the benefits of repealing these provisions “far
outweigh any costs or burdens.”
The Department also now claims there is a time
“burden for developing a language access plan.” Language access plans
are useful tools in determining the steps covered entities should take
in providing services for patients. If fewer entities develop these
plans, health care providers will be less prepared to serve LEP
patients. Instead of considering and balancing the needs of the LEP
community, the proposed rule seeks to eliminate the important assurances
LEP persons need to access and manage their own health care. The
Department’s costs-benefit analysis relies exclusively on the business
cost and does not measure the harm imposed on patients who experience
discrimination on the basis of their language, national origin, and
disability. Claiming the repeal of such assurances will save money
undervalues the lives of LEP patients and people with disabilities and
unfairly punishes those in need of health care services.
- 5. The Proposed Rule Impermissibly Attempts to Narrow the Enforcement Mechanism and Remedies Available Under Section 1557
Contrary to the plain language of Section 1557,
the Department illegally proposes limiting enforcement mechanisms and
remedies under the law. The text of Section 1557 provides that
“enforcement mechanisms provided for and available under such title VI,
title IX, section 794, or such Age Discrimination Act shall apply for
purposes of violations of this subsection.” The law is clear that the
various mechanisms available under each of these statutes apply to any
violation under Section 1557. The proposed rule’s attempt to narrow the
enforcement mechanisms contradicts Congress’s clear intention.
Similarly, the proposed rule seeks to roll back remedies available to an
individual discriminated against under Section 1557. By purporting to
limit the monetary damages an individual can claim if discriminated
against, this proposal is yet another way that the Trump Administration
attempts to make easier – or less costly – to discriminate.
- 6. The Proposed Rule Inappropriately Questions the Supremacy of Federal Nondiscrimination Laws
We are also deeply concerned that the proposed
rule appears to question Congress’s role in prohibiting discrimination.
The proposed rule says that Title IX and Section 1557 must “be
exercised with respect to State sovereignty.” The Supreme Court has been
clear – Congress has the authority to prohibit discrimination in
commercial activity. The Department should clarify that the civil rights
and anti-discrimination laws passed by Congress are the law of the
land, preempting State efforts to the contrary.[12]
The federal government has the responsibility to
expand access to health care and not undermine protections that could
harm those who need health care services. We urge you to withdraw the
proposed Section 1557 rule and protect the rights of all individuals who
seek access to health care.
Sincerely,
###
[1]
https://www.federalregister.gov/documents/2019/06/14/2019-11512/nondiscrimination-in-health-and-health-education-programs-or-activities
[2] https://www.hhs.gov/about/index.html
[3] http://law.howard.edu/sites/default/files/related-downloads/how_55_3.pdf
[4]
https://www.federalregister.gov/documents/2019/06/14/2019-11512/nondiscrimination-in-health-and-health-education-programs-or-activities
[5] https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf
[6] https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf
[7] https://www.lambdalegal.org/sites/default/files/publications/downloads/whcic-report_when-health-care-isnt-caring_1.pdf
[8]
45 CFR 155.120(c)(1)(ii), 155.220(j)(2), 147.104(e),
156.200(e),156.1230(b)(2); and 42 CFR 460.98(b)(3), 460.112(a),
438.3(d)(4), 438.206(c)(2), and 440.262.
[9]
As stated in the 2016 rule, “The key to providing meaningful access for
LEP person is to ensure that the recipient/covered entity and LEP
person can communicate effectively. The steps taken by a covered entity
must ensure that the LEP person is given adequate information, is able
to understand the services and benefits available, and is able to
receive those for which he or she is eligible.”
https://www.govinfo.gov/content/pkg/FR-2016-05-18/pdf/2016-11458.pdf
[10]
Most commenters disfavoring a national methodology recommended that the
languages in which covered entities must post taglines should be the
top 15 languages spoken State-wide by individuals with limited English
proficiency. Commenters explained that the State-wide threshold would be
more attuned to the diversity of languages spoken by individuals with
limited English proficiency in each State and would align with Federal
regulations governing the Marketplaces and qualified health plan
insurers.
https://www.govinfo.gov/content/pkg/FR-2016-05-18/pdf/2016-11458.pdf
[11] https://www.govinfo.gov/content/pkg/FR-2016-05-18/pdf/2016-11458.pdf
[12] Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964)
