WHARR’s Official Comment Opposing the Trump-Pence Administration’s Proposed Rollback of the Health Care Rights Law
The Trump-Pence administration has proposed a new rule that would roll back critical protections of the Health Care Rights Law (also known as Section 1557 of the Affordable Care Act), opening the door to widespread discrimination in health care.
The Health Care Rights law prohibits discrimination in health care on the basis of race, color, national origin, sex, gender identity, sex stereotypes, age, pregnancy, termination of pregnancy, or disability. In 2016, HHS issued comprehensive regulations to implement this law, which were based on longstanding civil rights principles. Now the Trump-Pence administration has proposed a new rule to rollback these critical regulations. Fortunately, the administration does not have the power to change the underlying law itself, but this proposed rule would still undermine the law’s protections, putting many lives at risk and disproportionately harming the very communities that are already the most vulnerable to discrimination.
The Department of Health and Human Services (HHS) must allow a period for public comments regarding the proposal. Below is WHARR’s official comment to HHS in opposition to the rollback. As an individual, you can and should also submit a comment telling the Trump-Pence administration that discrimination has no place in health care. Deadline for comments is 8/13.
— — — — —
August 12, 2019
VIA ELECTRONIC SUBMISSION
Secretary Alex Azar
U.S. Department of Health and Human Services
Herbert H. Humphrey Building, Room 509F
200 Independence Avenue SW
Washington, DC 20201
RE: Docket ID HHS-OCR-2019–0007, RIN 0945-AA11, Nondiscrimination in Health and Health Education Programs or Activities
Dear Secretary Azar:
WHARR (Women’s Health and Reproductive Rights) submits these comments in response to the Department of Health and Human Services’ (“HHS”, “Department”) and the Center for Medicare and Medicaid Services (“CMS”) Notice of Proposed Rulemaking (“proposed rule,” “NPRM”) to express our concerns with the proposed rule entitled “Nondiscrimination in Health and Health Education Programs or Activities,” published in the Federal Register on July 14, 2019.
WHARR (Women’s Health and Reproductive Rights) is a grassroots group based in Brooklyn, NY, operating under the umbrella of Get Organized Brooklyn. We take action for gender equity, reproductive rights and freedom, and women’s health. We believe that controlling one’s own bodily autonomy is a fundamental right. This must include the right to decide all aspects of one’s own reproductive health, including access to safe, legal abortions; the right to safe, economically secure pregnancy and parenthood; and the right to safety, health, and equal protection under the law, irrespective of one’s gender identity or sexual orientation. Therefore, we are deeply concerned with the proposed rule that seeks to remove discrimination protections in healthcare.
This proposed rule attempts to change the administrative implementation of Section 1557 in ways that are contrary to the plain language of the law and the spirit in which it was intended. The proposed changes are clearly crafted to disproportionately harm the most underserved populations who already struggle to access health care — including people seeking a full range of reproductive health care, including abortion; LGBTQ individuals; individuals with limited English proficiency, including immigrants; those living with disabilities; and people of color. Moreover, this rule would embolden compounding levels of discrimination against those who live at the intersection of these identities. The proposed rule contravenes the plain language of Section 1557, specifically, and the ACA broadly. Not only that, it is just plain dangerous and clearly puts people’s lives at risk.
In New York City, where WHARR is based, our community would be particularly vulnerable to the harm imposed by the NRPM’s proposed changes.
According to 2010 Census Data, the vast majority of women of reproductive age (15–49) in New York City are people of color: just over 69%. The NRPM’s proposed changes would increase the likelihood that these women would experience discrimination and harm as they seek access to reproductive health care. Beyond that, the proposed rule also refuses to explicitly protect against discrimination against people who are having a miscarriage or who have had an abortion. Abortion is connected to the legal understanding of sex discrimination, but by carving abortion out of the Health Care Rights Law’s definition of “sex discrimination,” the proposed changes open the door to behavior such as a hospital refusing to provide care to a patient who previously had an abortion. This would be unacceptable discrimination and should have no place in health care.
New York City’s metro area is home to the largest LGBTQ population in the United States. A survey by the New York City Comptroller’s office found that LGBTQ New Yorkers as a whole already face a number of economic and health care-related challenges, and the prevalence of these issues is higher for individuals who sit at the intersection of the identities being targeted by the proposed changes. For example, compared to all respondents in the survey:
- Respondents who identified as transgender or gender non-conforming reported a higher rate of being denied a promotion, not hired, or being fired or forced to resign from a job due to their sexual orientation or gender identity.
- Respondents identifying as Black, Hispanic, or transgender or gender non-conforming were much more likely to say they had been homeless at one time.
- Respondents identifying as Black or transgender or gender non-conforming were less likely to receive health insurance through an employer. Respondents identifying as Hispanic, Asian, or transgender or gender non-conforming were more likely to receive health care services in a setting outside of a traditional doctor’s office compared to respondents overall.
(For more detail, see Results of a Survey of LGBTQ New Yorkers by New York City Comptroller Scott M. Stringer, June 2017.)
It’s clear that the already vulnerable LGBTQ communities in our city will be exposed to even more discrimination and harm if the proposed changes are put in place. If anything, the data makes clear that the government should strive to increase protections for these marginalized groups rather than strip them away, as the proposed changes would do.
Nationally, individuals with Limited English Proficiency make up 8–9% of the overall population. In New York City, where WHARR is based, the percentage is much higher: According to data from the New York City Department of City Planning, almost 25%, or 1.8 million persons in our city, are not English Proficient. The proposed changes would weaken protections that provide access to interpretation and translation services for this population, resulting in some individuals not receiving necessary services and life-saving health care. By promoting language barriers, the proposed changes could lead to adverse health consequences for many of our neighbors.
In order to reflect the ACA’s clear intent and its overriding purpose of eliminating discrimination in health care, including against the diverse communities in New York City, where WHARR is based, the proposed rule should not be finalized.
Thank you for the opportunity to submit comments on the proposed rule. Please do not hesitate to contact WHARR at https://www.wharr.com/contact to provide further information.
WHARR (Women’s Health and Reproductive Rights)