August 15, 2019

DHHS “Proposed Rule” Proposes to Sidestep Non-discrimination Protections

On August 13, the Academy joined with 40 other organizations in signing a Public Comment letter (https://www.chlpi.org/wp-content/uploads/2013/12/HHCAWG-1557-Comments-8-13-2019.pdf) to Alex M. Azar, II, Secretary of the Department of Health and Human Services (DHHS), regarding a “Proposed Rule” that, if allowed, would seriously distort, reduce and block compliance with existing legal protections designed to counter discrimination.

The new Proposed Rule (ironically called Nondiscrimination in Health and Health Education Programs or Activities) would effectively “produce a weak, confusing mix of legal standards and remedies that would be difficult for federal and state agencies to enforce…mak[ing] it more difficult for consumers with complaints of intersectional discrimination to file complaints.”

Our existing legislation – called Section 1557 of the ACA or the “Final Rule” – is built upon the Civil Rights Act of 1964 and other laws passed to ensure access to civil rights remedies for all. Since DHHS can’t change this current law, they have introduced the Proposed Rule to sharply narrow the protections that are currently and deliberately broadly defined. The current Section 1557 provisions, for example, recognize sex discrimination as including discrimination on the basis of gender identity and sex stereotyping – a position accepted within the last decade. The new Proposed Rule, however, does not include this definition and, in fact eliminates most legal definitions altogether, thus effectively impeding future plaintiffs’ ability to sue DHHS for discriminatory actions in these areas.

Our Public Comment letter describes this change as, “contrary to the plain language of the law and, if finalized, would create a vague, unworkable rule with significant impacts on people living with HIV and other chronic illnesses and disabilities, lesbian, gay, bisexual, transgender, and queer (“LGBTQ”) people, people who need reproductive health care (including abortion), women of color, and people whose primary language is not English – all people who already experience significant barriers when accessing health care.”

The Proposed Rule also distinguishes sharply between what DHHS requires of entities not principally engaged in direct health care provision and what is required of providers who are engaged in direct care paid for with federal assistance. The latter would have to comply with Section 1557 regulations (no discrimination). Because most insurers don’t provide direct health care services, they would generally be exempt from the existing regulations. Plans or programs that do provide direct services while housed within insurance companies would be an exception. These plans and programs would still have to comply with Section 1557, if federally subsidized. But overall, the Proposed Rule would allow increased discrimination in health care settings.

The comment letter spells out additional ways in which the Proposed Rule flatly overrides the plain reading of Section 1557, which currently states that a person shall not “be excluded from participation in, or be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance.” (emphasis added)

This Proposed Rule, if approved, would make it much more difficult for people to understand or access anti-discrimination protections. Therefore, the Public Comment letter urges the Department to rescind the Proposed Rule entirely.