Opening the door to discrimination in our health care system is no way to ensure equal access to vital health care coverage or to plan for our country’s future. We should be building on the progress we made in the Affordable Care Act (ACA) in making health care available to more people, in ensuring that limited English proficient individuals can understand their health care options, and in specifically prohibiting health care discrimination on the basis of race, ethnicity, immigration status, sex, gender identity, disability or age. This administration is doing exactly the opposite. Piece by piece, this administration is systematically building a structure to protect the right to deny essential health care services based on any provider’s own religion or biases.
First, the administration created the office of “Conscience and Religious Freedom,” shifting the focus of the Office for Civil Rights at HHS from enforcing rights against discrimination in health care to creating a right to refuse to provide health care. Next, the administration issued a “denial of care” rule, elevating the right to refuse to provide health care over the right to receive it. Now the administration has issued proposed rules that reinterpret Section 1557 of the ACA, a section of the statute that specifically protects against discrimination in the provision of health care services. This latest action is a bold and another legally suspect piece of the administration’s anti-civil rights agenda.
The National Health Law Program helped develop the ACA’s Sec. 1557. It is a crucial piece of the landmark law, for the first time specifically prohibiting discrimination on the basis of sex in all health programs receiving federal financial assistance. Section 1557 applies to any health care program any part of which receives federal funding, any health program administered by federal agencies, and ACA health insurance marketplaces and issuers that participate. It incorporates the protections of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973, and specifically incorporates the enforcement mechanisms of those statutes, which include a private right of action to enforce the law.
The current regulations implementing Sec. 1557 adopt settled law that discrimination on the basis of sex includes discrimination on the basis of gender identity and sex stereotyping. In addition, the regulations recognize that sex discrimination includes discrimination on the basis of pregnancy and pregnancy related conditions, including termination of pregnancy. They also recognize that eliminating discrimination on the basis of national origin means that health care must be accessible to people with limited English proficiency. There is nothing radical about these regulations; they flow from the language of the ACA and from the law interpreting the civil rights statutes on which Sec. 1557 was built.
HHS is now pushing for a rollback of Sec. 1557. The agency claims it is proposing this regulatory change “to better comply with mandates of Congress, address legal concerns, relieve billions of dollars in undue regulatory burdens, further substantive compliance, reduce confusion, and clarify the scope of Section 1557 ….”
In its 204-page proposal, HHS elaborates at length on its reasoning. But there are no surprises for watchers of this administration. For example, the administration wants to rollback progress in accessing health care, especially for LGBTQ people, women, and people with limited English proficiency.
HHS cites federal court cases where states and religiously affiliated health care organizations banded together in an aggressive effort to rollback the nondiscrimination requirements of Sec. 1557. In one of the cases, Franciscan Alliance v. Burwell, a federal court in Texas enjoined the provisions of the current regulations that protect the right of transgender individuals to appropriate medical care and protect patients from discrimination because they seek to end pregnancy. The court concluded that the regulations exceeded HHS’s authority under Sec. 1557, because “sex discrimination” in 1557 includes only discrimination on the basis of a binary, biological difference between males and females, defined at birth. The court also concluded that enforcement of the regulations infringed on the plaintiffs’ religious freedom.
The administration’s new proposed Sec.1557 regulations echo the Texas court’s crabbed definition of sex discrimination. But the regulations are not the source of the inclusion of transgender individuals within the protections of the civil rights laws. As Flack v. Wisconsin Department of Social Services, recognized, it is the law itself that prohibits discrimination on the basis of sex, which includes sex stereotyping and gender identity. Indeed, a long line of other federal district and circuit courts have upheld sex discrimination claims brought by transgender individuals. The administration’s new regulations ignore the language of Sec.1557 and case law on the meaning of sex discrimination.
The proposed regulation changes are also dangerous. They eliminate protections for LGBTQ individuals, undermine access to abortion, and allow religious health care providers to discriminate on the basis of sex. Eliminating language access assistance makes the package complete. Civil rights protections are at risk for most people, except possibly English-speaking heterosexual white males. This may play well to the administration’s narrow but vocal base, but it should not play well for the rest of us. Civil Rights are meaningless if they do not apply to those most at risk of discrimination.
In March 2017, the Health Care Task Force of the Leadership Conference on Civil and Human Rights, which the National Health Law Program co-chairs, urged full and complete and robust implementation and enforcement of Sec. 1557, stating, “Access to health care is a civil and human right and the opportunity to access to quality health care and live a healthy life must be equally available to all and not selectively reserved for a few. Under longstanding laws and principles … enforced across Democratic and Republican administrations, entities that receive federal funds are barred from discriminating in the services they provide. It is a core principle of our democracy that federal funds may not be used to subsidize discrimination in programs that serve” all people. The points we made in that statement are equally true today and it is even more urgent that we take a stand against discrimination.
The National Health Law Program will soon lodge comments with HHS explaining why this proposed regulatory change runs afoul of congressional intent, and reverses progress on ending discrimination in our health care system. We urge others, health advocate groups and individuals, to also weigh in on the side of equal access to health care. This HHS might dismiss comments in favor of ending discrimination in our health care system. But a future administration may see the light and correct course. We need to be on record standing up for what we know is right.