Weakening the ACA

National Health Law Program Criticizes Administration for Encouraging Discrimination and Continuing Efforts of Sabotage

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Washington, D.C. – After years of executive orders and other actions to sabotage the landmark Affordable Care Act, the Trump administration is acting to undermine an integral provision of the ACA, its civil rights protections for people historically discriminated against in our health care system.

The ACA’s Section 1557 prohibits discrimination in health care programs based on race, color, immigration status, language proficiency, sex, sex stereotypes, gender identity, age or disability. Sec. 1557’s current implementing rules explicitly prohibit discrimination on the basis of sex and gender identity and against pregnancy, pregnancy-related conditions, marital or familial status, gender identity, and sex-stereotyping. Provisions also protect individuals with limited English proficiency and individuals with disabilities from discrimination. The proposed changes have a broad impact on all individuals currently protected by Section 1557.

National Health Law Program Executive Director Elizabeth G. Taylor criticized the administration for again ignoring input from health care professionals, heath advocates, hospitals, and health care providers.

“The current administration has rewritten large swaths of the implementing regulations of Section 1557 to limit the definition of discrimination, meaning women, LGBTQ people and limited English proficient individuals may again be shut out of vital health services and care because of biases against them,” said Taylor.

National Health Law Program Staff Attorney Candace Gibson said, “Before enactment of the Affordable Care Act, women were charged more than men for health insurance and were denied coverage for necessary services, such as maternity care and contraception. Section 1557 prohibits these practices and is the first federal law to ban sex discrimination in health care. The administration is seeking to undo this progress by privileging a narrow view of religious beliefs over the health care needs of patients in these proposed changes to Section 1557. If implemented, many women and LGBTQ people, particularly those of color, will be harmed.

National Health Law Program Senior Attorney Wayne Turner noted the intent of the ACA was always about extending health care coverage and lowering uninsured rates. Today’s action is all about sabotaging the ACA, Turner said.

“For more than a decade the Affordable Care Act has lowered high uninsured rates in U.S., providing tens of millions of low-income people access to health care services, including vital preventative care,” Turner continued. “But since his first days in office, Donald Trump has used executive powers to sabotage the intent of the ACA. The administration is now trying to weaken vital civil rights protections in the ACA, such as protections for women and LGBTQ persons. The proposed regulation changes could ultimately lead to more people becoming uninsured because of the lack of protections from discrimination in health care services and plans.

One reason for the ACA’s nondiscrimination provision was to extend health care coverage, and that cannot be done when discrimination is allowed to fester and thrive,” Turner concluded.

National Health Law Program Managing Attorney of the D.C. office Mara Youdelman noted that the proposed regulation also would repeal entire sections of the existing regulations. This includes requirements for sending notices to inform all individuals about nondiscrimination requirements, informing limited English proficient individuals how to request language services, and using language access plans to help appropriately determine how to provide language services. Yet these proposals are not immediately effective; despite the administration’s action, its proposed regulation change is open to comment.

“The ACA, including Section 1557, remains the law of the land despite the Trump administration’s proposed action to repeal nondiscrimination requirements,” Youdelman said. “We encourage health care and human and civil rights advocates and people committed to protecting civil rights to flood the administration with comments opposing its endorsement of discrimination in our health care system.”

Youdelman also noted that the National Health Law Program and other civil rights advocates have filed litigation to enforce the ACA’s nondiscrimination provision, Sec. 1557. In July 2018, a federal court ruled in Flack v. Wisconsin that the plain text of the ACA extends civil rights protections to transgender people seeking gender-affirming health care services. Another federal court in California ruled in favor of the nondiscrimination provision, and a U.S. District Court judge in Texas is considering a religious-based challenged to the ACA’s nondiscrimination provision in Franciscan Alliance v. Azar.

For more information or comment about the rule regarding the ACA, please contact the National Health Law Program Communications team at leaming@healthlaw.org or diantonio@healthlaw.org.

National Health Law Program, founded in 1969, advocates for the rights of low-income and underserved people to accessto reproductive health care.


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