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The landmark Affordable Care Act (ACA) included an anti-discrimination provision – the Health Care Rights Law – otherwise known as Section 1557.  This provision prohibits discrimination by certain health programs or facilities on the basis of race, color, national origin, sex, age or disability. Unfortunately, the Trump Administration recently released a proposed rule (not yet published in the Federal Register) that would make significant changes to the scope of Section 1557 and roll back important protections for groups that have historically faced discrimination in the health care setting.

A recent Health Affairs blog by Katie Keith provides a background on Section 1557, including related regulations and litigation, as well as a detailed summary of the proposed rule. Keith notes that the proposed changes would go beyond the Department of Health and Human Services Office of Civil Rights (OCR), the agency charged with enforcing Section 1557, and, among other things, “would remove explicit nondiscrimination protections for LGBT people by eliminating sexual orientation and gender identity from other HHS regulations.”  

According to a statement by the National Center for Transgender Equality, the proposed rule “would eliminate all recognition by the Department of Health and Human Services of protections for transgender people under the Health Care Rights Law, erasing the progress made in ensuring the rights of all transgender people to equal and fair treatment. It also seeks to weaken civil rights protections for patients more broadly in a variety of ways by limiting how broadly HHS will enforce the law.” (For more information, see the Protect Trans Health website at: https://protecttranshealth.org/.)

The proposed rule would also weaken requirements for providing services to individuals with limited English proficiency (LEP) as well as certain notice requirements and enforcement mechanisms.

As our colleagues at Justice in Aging noted in a recent statement, this proposed rule fits a broader pattern of rolling back important protections for people facing discrimination:

To be clear, this proposed rule is part of a larger, strategic attack on the lives of LGBTQ and LEP older adults. The Department of Health and Human Services Office for Civil Rights (OCR), the same agency tasked with enforcing Section 1557, recently released a final “Conscience Rights” rule that allows providers to discriminate against transgender older adults and others on religious and moral grounds and changed the OCR mission statement to emphasize conscience and religious freedom. Meanwhile, the Department of Homeland Security’s proposed “public charge” rule would make it nearly impossible for LEP older immigrants to enter the U.S. or become permanent residents if they are not wealthy and use or might need Medicaid or help paying for Medicare, food or housing.

The rule is not yet final, and will go through a public comment period.  But damage is already being done by fostering confusion, promoting discrimination, and discouraging transgender individuals from seeking health care. The Center for Medicare Advocacy will join our colleagues in fighting back against these retrograde harmful and disdainful policies.

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