The Trump Administration has long been working to undermine the Affordable Care Act, including the strong regulations implementing its non-discrimination protections in ACA Section 1557. This month, the U.S. Department of Health and Human Services chose to officially rollback these protections for people historically subjected to discrimination, in the midst of a global pandemic disproportionately affecting people of color.
Summary of the rollback from the National Health Law Program (NHeLP):
The rule change rolls back notice and language access requirements for individuals with limited English proficiency. “All individuals need to know they are protected by Section 1557 and what to do when they face discrimination. Eliminating tagline and notice requirements shifts the onus from providers who are prohibited from discriminating to individuals to somehow figure out their rights and how to enforce them. Health care is already an unequal playing field and the administration’s efforts continue to tilt the scale further against patients,” said National Health Law Program Managing Attorney of the D.C. office Mara Youdelman. “The COVID-19 pandemic has revealed how important language access is for patient care. The inability of patients to communicate with medical staff can be deadly and exacerbates existing health inequities. When data shows that COVID-19 is already disproportionally impacting Black and Latinx communities, why would the administration pour time and effort into erecting new barriers to care?”
In addition to targeting people with limited English proficiency, the rule change also seeks to gut protections for people seeking reproductive and sexual health care. “Sex discrimination is deeply entrenched in our health care system. It is particularly harmful to women who suffer compounded discrimination at the intersection of multiple identities, including Black, Indigenous, Asian, and Latinx women, trans individuals, and women with disabilities,” says Madeline Morcelle, a staff attorney and member of NHeLP’s Reproductive and Sexual Health team. “Until the ACA, women were charged more for insurance and were denied coverage for essential care, such as contraception and maternity care. The ACA’s Section 1557 explicitly prohibits those practices and was the first federal law to prohibit sex discrimination in health care. By rolling back regulations implementing these protections, the Trump administration’s rule privileges a narrow set of religious beliefs over the health and lives of living, breathing women. Its choice to finalize this rule now—as Black women and their families across the country fight for survival amid the pandemics of COVID-19, police violence, and Black maternal mortality—is a condonation of all the above.”
“Since taking office, the Trump administration has actively targeted the LGBTQ community and worked to undermine the legal protections we rely upon. Today’s final rule is intended to intimidate transgender and gender non-conforming people, and make it more difficult to access health care,” said senior attorney Wayne Turner. “Providing health care providers license to discriminate and turn away patients is unconscionable in the best of times, but nothing short of barbaric in the middle of a deadly pandemic. The cruelty isn’t an unfortunate side effect. The cruelty is the point.”
See the NHeLP press release here.
How does the rollback affect Washingtonians?
The final federal rule still allows states to adopt their own nondiscrimination protections. Thankfully, the Washington state legislature passed a law in 2019 that incorporates the pre-rollback regulations, providing insulation from the newly-adopted federal rules. A second law passed this year expanded the types of coverage to which it applies.
Insurance Commissioner Mike Kreidler reminded Washington health insurance carriers that the comprehensive ACA protections against discrimination on the basis of race, color, national origin, disability, age, sex, gender identity and sexual orientation still apply to all health plans in Washington. These laws are enforceable by the Insurance Commissioner.
Hooray! Important non-discrimination decision from the Supreme Court!
Ironically, the same week as the rule rollback, the Supreme Court decided Bostock v. Clayton County, a case that supports non-discrimination on the basis of sex, holding that an employer cannot fire or otherwise discriminate against employees because of their sexual orientation or gender identity, including transgender individuals. This decision offers new hope that planned legal challenges to the rule rollback, already announced by the Human Rights Campaign and Lambda Legal, could be strengthened by this ruling. For additional information, see this Health Affairs blogpost.
We applaud Commissioner Kreidler for his recent statement recognizing the cruel timing of the federal rollback of the ACA nondiscrimination rules, which were issued days after the Supreme Court decision, during Pride month, and on the anniversary of the Pulse nightclub shooting.