HHS proposal to roll back nondiscrimination protection draws 155K comments

A proposed rule that would remove anti-discrimination protections for patients, including those for LGBTQ individuals, generated more than 155,000 comments—many of them urging the Trump administration to drop the plan opponents call a rollback of health equity.

Among those sending comments on the proposed rule: the country’s largest physician group, the American Medical Association (AMA), as well as a coalition of 22 state attorneys general. Both said they “condemned” the rule that would eliminate anti-discrimination protections in healthcare.

The AMA called the proposal “misguided” and said it would remove anti-discrimination protections related to sexual orientation, gender identity and the termination of pregnancy across a wide variety of healthcare programs and insurance plans.

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“This proposal marks the rare occasion in which a federal agency seeks to remove civil rights protections. It legitimizes unequal treatment of patients by not only providers, healthcare organization, and insurers, but also by the government itself—and it will harm patients. Such policy should not be permitted by the U.S. government, let alone proposed by it,” the AMA said in a comment letter (PDF).

The comment period closed Aug. 13 on the proposed rule published in June, which would remove healthcare protections for transgender patients and women seeking to terminate pregnancies.

The Department of Health and Human Services (HHS) proposed changes to the Affordable Care Act’s (ACA's) anti-discrimination provisions in Section 1557, which prohibits racial, gender, age or disability discrimination in health programs. The proposal would reverse a rule that added a regulatory definition of sex discrimination based on gender identify, which included gender expression and transgender status.

The coalition of attorneys general, led by California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey, sent a letter (PDF) saying the proposed rule would eliminate protections against discrimination for women, people with disabilities, the LGBTQ community, individuals with limited English proficiency and other vulnerable populations.

In a statement, Becerra said the proposed rule was “not only unlawful” but would open the door to discrimination in the healthcare system.

“The Trump Administration has made abundantly clear that it has no regard for access to affordable, quality healthcare,” he said.

The letter was also signed by the attorneys general of Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Vermont, Virginia, Washington and the District of Columbia.

Also commenting against the proposed rule was America’s Essential Hospitals. In a letter (PDF), the group called on HHS’s Office for Civil Rights (OCR) to withdraw the proposed changes that it said remove crucial nondiscrimination protections for patients based on sex, including gender identity, and to uphold protections for individuals with limited English proficiency in healthcare settings.

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In a letter (PDF), the American Hospital Association (AHA) also urged HHS not to finalize its proposed changes that would end protections against discrimination based on gender identity or sexual orientation. The group said it continues to support the regulations that ensure patients who are less proficient in English have access to translation services but said it would support removal of the blanket mandate to provide translations in 15 different languages, regardless of the languages spoken in the community served.

“The proposed change to remove that blanket mandate will enable the many hospitals, especially in rural areas, that serve communities in which many fewer languages are spoken, to devote their resources to translation services that are most meaningful for the individuals they serve,” the AHA wrote.

The ACA prohibits discrimination in federal healthcare—from Medicaid, Medicare and the healthcare exchanges to federal healthcare grant programs providing safeguards against discrimination.

As well as hospitals, health plans also opposed the rule. The Association for Community Affiliated Plans, which represents 66 not-for-profit safety net health plans, spoke out in opposition. “All health care consumers, including those enrolled in federally-funded health coverage programs, deserve access to appropriate healthcare without experiencing discrimination or the fear of discrimination,” the group’s CEO, Margaret Murray, wrote in a letter to OCR.

“This proposed change would impact people who identify as lesbian, gay, bisexual, transgender and queer (LGBTQ), as well as people who have sought or may in the future seek abortions and other reproductive health services, people whose first language is not English, immigrants, people of color, and people with disabilities. We harbor grave concerns that if finalized, this proposed rule will weaken key protections for many healthcare consumers in our nation, including many of our plans’ customers,” she wrote.

In addition to the proposed rule to healthcare protections, the Trump administration has also sought a broader push to expand healthcare "conscience rules." The administration agreed to postpone implementing that rule, which was supposed to take effect July 22 and would allow healthcare workers to refuse to perform certain procedures such as abortion for religious or moral reasons. HHS and opponents of the rule mutually agreed to delay implementation until Nov. 22 while the rule is challenged in a California court.

As for the current proposal, during the Obama administration, HHS’ OCR announced it would bar providers who receive federal funding from discriminating on the basis of gender identity under Section 1557 of the ACA.

In announcing the proposed change, OCR officials said they would continue to "vigorously enforce" bans of discrimination on the basis of race, color, national origin, disability, age and sex. But the agency intends to return to the "plain meaning" of sex discrimination Congress intended, Roger Severino, director of OCR, has said.

The proposed rule would apply to federally facilitated and state-based health insurance exchanges created under the ACA and the qualified health plans offered by issuers on those exchanges.

Severino said the proposed changes would reduce regulatory rules that require insurers to print and mail unnecessary informational flyers that inform patients and customers of their ability to have “significant documents” translated in at least 15 languages. That would save more than $3.2 billion over five years, Severino said.