Menendez, Murray, Colleagues Urge HHS to Halt Effort to Undermine the ACA’s Anti-Discrimination Provisions in Midst of COVID-19 Pandemic

‘The Department should be focused on helping people obtain the health care they need, not on helping others discriminate against patients and deny them that care’

‘Congress designed Section 1557 of the ACA to expand—not reduce—access to comprehensive health care for all people’

WASHINGTON, D.C. – U.S. Senators Bob Menendez (D-N.J.), a senior member of the Senate Finance Committee that sets national health policy, and Patty Murray (D-Wash.), ranking member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, led a group of 29 of their colleagues in sending a letter to the U.S. Department of Health and Human Services (HHS) Secretary blasting the Administration’s intention to finalize a proposed rule implementing Section 1557 of the Affordable Care Act (ACA). The proposed rule would roll back anti-discrimination protections for millions of American patients, even though these protections are especially critical during the COVID-19 public health emergency.

“The misguided changes in the proposed rule would gravely undermine health care anti-discrimination protections for LGBTQIA+ people, women, people with limited English proficiency, people with disabilities, and others, including those who face multiple forms of discrimination. While these policy changes would be harmful at any time, finalizing this proposed rule during the 2019 novel coronavirus (COVID-19) pandemic will reduce vulnerable communities’ access to health care services in the middle of a global health emergency,” the senators wrote to Secretary Alex Azar. “The Department should be focused on helping people obtain the health care they need, not on helping others discriminate against patients and deny them that care.  We strongly urge you to reconsider this proposed rule.”

“The proposed rule has wide-ranging and harmful implications beyond the efforts to undercut protections against discrimination based on gender identity and sexual orientation,” the senators continued. “Additionally, the Department refused to clarify in the proposed rule whether it would enforce protections against discrimination because someone is miscarrying a pregnancy or seeking care after having an abortion. This could embolden providers to turn away patients who have had abortions, who are pregnant and unmarried, or who are seeking miscarriage management care.”

The proposed rule seeks to weaken requirements that health care providers take reasonable steps to provide access for patients with limited English proficiency, such as including taglines on written documents and posting notices about the availability of interpreters. The proposed rule also sought comments on several proposals to weaken protections for people with disabilities. As a result, patients with limited English proficiency and patients with disabilities could be denied equal opportunity to access information about their own health and health care decisions.

“Undermining health care anti-discrimination protections at any time is cruel, but to do so now will have deadly consequences for some of the populations that are most vulnerable during this pandemic. Congress designed Section 1557 of the ACA to expand—not reduce—access to comprehensive health care for all people,” the senators concluded. “By moving away from the express intent of Congress, these policy changes will cause real harm to our most vulnerable patients.”

Joining Sens. Menendez and Murray in sending this letter were Senators Tammy Baldwin (D-Wis.), Dick Durbin (D-Ill.), Sherrod Brown (D-Ohio), Richard Blumenthal (D-Conn.), Kamala D. Harris (D-Calif.), Edward J. Markey (D-Mass.), Tammy Duckworth (D-Ill.),  Jeffrey A. Merkley (D-Ore.), Tim Kaine (D-Va.), Bernard Sanders (I-Vt.), Michael F. Bennet (D-Colo.), Jack Reed (D-R.I.), Maggie Hassan (D-N.H.), Chris Murphy (D-Conn.), Tina Smith (D-Minn.), Amy Klobuchar (D-Minn.), Kirsten Gillibrand (D-N.Y.), Elizabeth Warren (D-Mass.), Cory A. Booker (D-N.J.), Catherine Cortez Masto (D-Nev.), Mazie K. Hirono (D-Hawaii), Sheldon Whitehouse (D-R.I.), Benjamin L. Cardin (D-Md.), Gary C. Peters (D-Mich.), Patrick Leahy (D-Vt.), Jacky Rosen (D-Nev.) Chris Coons (D-Del.), Ron Wyden (D-Ore.) and Bob Casey, Jr. (D-Penn.).

Organizations supporting this letter include AIDS United, American Civil Liberties Union, Asian & Pacific Islander American Health Forum, Association of Asian Pacific Community Health Organizations, Center for American Progress, Family Equality, Lambda Legal, Leadership Conference on Civil and Human Rights, National Center for Transgender Equality, National Health Law Program, National Partnership for Women and Families, and the National Women’s Law Center.

“Since day 1, the Trump Administration has focused on attacking the rights of LGBTQ people, women, and immigrants. The latest move to drastically undermine nondiscrimination protections in health programs in the midst of a pandemic is unconscionable,” said Winnie Stachelberg, Executive Vice President, Center for American Progress. “Even when lives are on the line, this Administration prioritizes hate over the wellbeing of the American people.”

“It is absolutely unconscionable that HHS is issuing rules assaulting some of the most vulnerable members of the LGBTQ community during a national pandemic, including transgender people seeking health care. The announced finalization of the rule removing health care nondiscrimination protections for LGBTQ people from the Affordable Care Act implementing regulations sends a dangerous and false message to health care providers that they can turn away LGBTQ patients, at a time when delaying or not seeking care can be a matter of life or death for those with severe cases of COVID-19. We are grateful to Sens. Menendez and Murray and all of the signatories for drawing attention to the dangers this rule poses to our families and for pressing HHS not to take any steps that would limit access to health care at this critical time,” said Denise Brogan-Kator, Family Equality’s Chief Policy Officer.

“Finalizing a rule that puts the lives of the most marginalized in danger during a global pandemic is unlawful and immoral. Women, non-English speakers, LGBTQ people, and individuals who have had or are seeking abortion care should not fear being turned away by a medical provider because of who they are or the personal health decisions they have made. This Administration’s actions are beyond unacceptable and we applaud Senators Menendez and Murray and the 29 other Senators that are asking the Trump Administration to not finalize the rule,” said Fatima Goss Graves, President and CEO, National Women’s Law Center.

The full text of the letters can be found here and below.

Dear Secretary Azar,

We write to express our deep concern about the Department of Health and Human Services’ (HHS or the Department) intent to finalize the proposed rule (RIN 0945-AA11) implementing Section 1557 of the Affordable Care Act (ACA). Section 1557 prohibits discrimination on the basis of race, color, national origin, sex (including, but not limited to, discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity), age, disability, and language proficiency in any health care program or facility that receives federal funding. The misguided changes in the proposed rule would gravely undermine health care anti-discrimination protections for LGBTQIA+ people, women, people with limited English proficiency, people with disabilities, and others, including those who face multiple forms of discrimination.  While these policy changes would be harmful at any time, finalizing this proposed rule during the 2019 novel coronavirus (COVID-19) pandemic will reduce vulnerable communities’ access to health care services in the middle of a global health emergency.  The Department should be focused on helping people obtain the health care they need, not on helping others discriminate against patients and deny them that care.  We strongly urge you to reconsider this proposed rule.

In 2019, HHS undertook a harmful and unlawful rewrite of the implementing regulations for Section 1557 of the ACA.  HHS recently submitted the final rule for review by the Office of Management and Budget, indicating HHS may have immediate plans to publish the rule.  Specifically, the proposed rule hinders the administrative enforcement of protections against discrimination on the basis of sexual orientation and gender identity. The proposed rule would unlawfully incorporate an exemption to the ACA’s protection against sex discrimination, targeting patients who will need abortion care.  The proposed rule would also reduce patients’ access to critical health care information in their primary language, weaken requirements for accommodations for people with disabilities, deprive patients of notice of their right to file a grievance, create confusion around appropriate legal standards and available remedies for claims involving intersectional discrimination, and could purport to exempt many health care programs from the law altogether. 

The proposed policy changes would falsely suggest to health care providers and insurers that they can refuse to care for LGBTQIA+ patients – including testing and treatment for COVID-19 – based on who they are.  The LGBTQIA+ community already experiences severe discrimination in health care, and finalizing this rule as proposed would heighten existing barriers to care during a public health emergency.  According to one study, eight percent of lesbian, gay, and bisexual adults and 29 percent of transgender adults report a health care provider had refused them service due to their actual or perceived sexual orientation or gender identity.   Another study found that 28 percent of transgender or gender nonconforming people had postponed medical care due to discrimination and disrespect. The sudden uptick in at-home deaths in COVID-19 hot spots indicates how dangerous it can be for people with severe cases of COVID-19 to delay seeking care.   If HHS finalizes this proposed rule, members of the LGBTQIA+ community suffering from COVID-19 – especially people who are transgender, gender nonbinary, and gender nonconforming – may face significant barriers to timely care. 

In addition to existing barriers to care, this proposed rule would be especially harmful for the LGBTQIA+ community given the health disparities it already faces and the additional risks created by the COVID-19 pandemic.  One study found that members of the LGBTQIA+ community report more chronic conditions and are more likely to rate their health as poor compared to heterosexual individuals.  HIV/AIDS disproportionately impacts members of the LGBTQIA+ community, especially those from communities of color.  Additionally, LGBTQIA+ adults are more likely to live in poverty  and are over twice as likely to be uninsured compared to other adults.  All of these factors pose risks for members of the LGBTQIA+ community during this public health emergency.

The proposed rule has wide-ranging and harmful implications beyond the efforts to undercut protections against discrimination based on gender identity and sexual orientation. The proposed rule attempts to create broad religious exemptions and unlawfully incorporates the Danforth Amendment and the religious exemption from Title IX of the Education Amendments of 1972. Additionally, the Department refused to clarify in the proposed rule whether it would enforce protections against discrimination because someone is miscarrying a pregnancy or seeking care after having an abortion. This could embolden providers to turn away patients who have had abortions, who are pregnant and unmarried, or who are seeking miscarriage management care. Without administrative enforcement of these protections, women with limited options for health care, particularly those who already face barriers to care, including Black women, indigenous women, and other communities of color, as well as those who live in rural or underserved areas, could face additional barriers to accessing health care.    

The proposed rule seeks to weaken requirements that health care providers take reasonable steps to provide access for patients with limited English proficiency, such as including taglines on written documents and posting notices about the availability of interpreters. The proposed rule also sought comments on several proposals to weaken protections for people with disabilities.  For example, HHS requested comments on a proposal to exempt small entities from a requirement to provide auxiliary aids and services to people with disabilities.  As a result, patients with limited English proficiency and patients with disabilities could be erroneously denied equal opportunity to access information about their own health and health care decisions. 

Patients deserve to know their rights and to receive services without discrimination, both during the COVID-19 public health emergency and at all other times.  However, this proposed rule seeks to significantly reduce the number of insurance plans and federal health programs that must comply with the ACA’s anti-discrimination provisions.  The proposed rule also would eliminate the requirement that health care providers notify patients of their right to receive services without discrimination and the process for filing a grievance if they do face discrimination.  Anti-discrimination protections are not meaningful if patients do not know their rights.

Undermining health care anti-discrimination protections at any time is cruel, but to do so now will have deadly consequences for some of the populations that are most vulnerable during this pandemic.  Congress designed Section 1557 of the ACA to expand—not reduce—access to comprehensive health care for all people.  By moving away from the express intent of Congress, these policy changes will cause real harm to our most vulnerable patients.  We urge you to abandon this effort and instead focus on ensuring all Americans can access the health care they need during the COVID-19 public health emergency.  Thank you for your consideration of this urgent matter. 

Sincerely,