By Kelli Garcia, and Julie Zuckerbrod, National Women’s Law Center
The Trump Administration wants to legalize discrimination in health care. Yes, you read that correctly.
The Health Care Rights Law, which is part of the Affordable Care Act, is a groundbreaking civil rights statute that makes it illegal for health care providers to discriminate on the basis of race, color, national origin, sex, age, or disability. Health insurers, hospitals, clinics, and any other entities that receive federal funds have to comply. This law is a huge deal — until 2010, there was no broad federal prohibition on denying someone health care or insurance coverage because of their sex. 2010!
In 2016, the Department of Health and Human Services (HHS) made this law even stronger.
The Health Care Rights Law, like most other laws, is implemented through agency rules. You can think of a law like a task Congress assigns to an agency, whereas a rule represents the agency’s plan to accomplish that task. Because of this, rules play a critical role in guaranteeing individual rights.
In 2016, HHS issued a rule making it clear that sex discrimination includes denial of care on the basis of gender identity, sex stereotypes, pregnancy, or termination of pregnancy. The 2016 rule also has important requirements that ensure people with limited English proficiency can access the care they need and know their rights. This represented a huge step toward finally ending discrimination in health care by stopping it before it happens and giving people a remedy if they faced discrimination.
The Trump Administration wants to rollback the 2016 rules.
The Trump Administration’s idea of what prohibiting discrimination means is…different. And it looks a lot like promoting discrimination. They recently proposed a new rule that would dismantle the 2016 regulations and erode basic civil rights protections. Ugh. While the Trump Administration can’t change the underlying law itself, the Proposed Rule is an attempt to severely undermine its protections. UGH!
Here are 6 ways the Proposed Rule promotes – instead of prohibits – discrimination:
- It attempts to carve abortion out of health care. It’s well established that abortion is connected to the definition of “sex discrimination.” But the Proposed Rule attempts to chip away at this connection, leaving open the possibility that a hospital could refuse to provide a woman care because she is having a miscarriage, or because she’s had an abortion.
- It attempts to erase protections for LGBT individuals. The Proposed Rule deletes (literally) any mention of gender identity or sex stereotyping in the definition of “sex discrimination.” This opens the door for hospitals, clinics, and insurance companies to discriminate against people because of their gender identity or sexual orientation.
- It allows religion to dictate patient care. The Proposed Rule would excuse any religiously-affiliated hospital, clinic, or health insurance company from complying with the sex discrimination provisions of the Health Care Rights Law. This means a health clinic could turn someone away because of their gender identity or sexual orientation, because they are pregnant and unmarried, or because they have had an abortion.
- It would allow more entities to discriminate. The Proposed Rule would drastically limit who has to comply with the Health Care Rights Law by claiming, for example, that insurance companies that provide health insurance are not health programs.
- It eliminates important notices that let people know about their rights. The current regulations require covered entities to post a notice letting people know about their rights and how to file a complaint if they experience discrimination. The Proposed Rule would eliminate this requirement, leaving people unaware of their rights, including what to do if they face discrimination.
- It makes it harder for non-English speakers and people with disabilities to access care or know their rights. The Proposed Rule would eliminate requirements that health programs post notices letting people know about the availability of language access services, such as translators, as well as aids and services for people with disabilities, making it harder for people with limited English proficiency or disabilities to access care.
Let’s be clear — this Proposed Rule encourages discrimination in a wide variety of health care settings. Under the Trump Proposed Rule, health care providers could deny people care because they’ve had an abortion, because of their gender identity or sexual orientation, or because they don’t speak English.
So, to recap: The Health Care Rights Law prohibits discrimination in health care. But the Trump Administration’s plan is to implement that law in a way that would…encourage discrimination? If you’re confused, you’re not alone. It’s clear that the Trump Administration is not interested in protecting patients. This Proposed Rule is part of their broader agenda to allow health care providers’ personal beliefs to dictate patient care.
But there’s still time to make sure this harmful rule isn’t enacted. We have until August 13th to submit comments to the Trump Administration in opposition to this rule. We have to tell them that it’s wrong for health insurers, hospitals, and clinics to decide who deserves health care. It’s time for the Trump Administration to #PutPatientsFirst.