DREDF Denounces Weakening of Healthcare Nondiscrimination Protections
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Disability Rights Education and Defense Fund
June 16, 2020

DREDF Denounces Weakening of
Healthcare Nondiscrimination Protections

DREDF condemns the Trump Administration's rollback of regulations implementing the Affordable Care Act's ("ACA") nondiscrimination provision.  The regulatory action, which comes in the midst of a global pandemic and heightened awareness of violence against Black and transgender communities, undermines critical protections for LGBTQI+, disabled, and other historically marginalized groups in healthcare.  Not only is the rule unethical but, as highlighted by the U.S. Supreme Court's June 15 civil rights ruling, it is also contrary to the law.

Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, disability, and age in health programs and activities.  In 2016, implementing regulations by the Office for Civil Rights of the U.S. Department of Health and Human Services affirmed in greater detail the application and meaning of Section 1557's protections.  Last year, DREDF, among nearly 200,000 other commenters, defended the 2016 regulations as the proper interpretation of Section 1557.

Nevertheless, on June 12, the Trump Administration issued a final rule eliminating important components of the earlier regulations. Among other changes, the rule attempts to roll back provisions affirming that Section 1557 bars discrimination on the basis of sexual orientation and gender identity, and reaches discrimination based on association (with someone in a protected class) and in health plan benefit design. The rule also attempts to weaken provisions that ensure individuals with Limited English Proficiency are informed of their language access rights and other consumer protections, such as requirements on notice, grievance, and compliance coordinators.

The protections of Section 1557 have never been more important than they are now. Over the past several months, Section 1557 has been used to block states from implementing discriminatory COVID-19 policies that deprioritize disabled people in triage protocols, and to require accommodations for people who need support persons in hospital settings. Section 1557, as well as other federal and state disability nondiscrimination laws continue to exist and protect people with disabilities, but the specific application of Section 1557 to healthcare helped an entire industry better understand and address many ongoing barriers people with disabilities encounter while trying to stay healthy and well. By weakening healthcare nondiscrimination regulations, the Trump Administration is disregarding the lives of disabled people at a critical moment in time.

Further, DREDF stands in solidarity with the LGBTQI+ community in denouncing the final rule's erroneous interpretation of "sex" discrimination. As the U.S. Supreme Court announced just three days after issuance of this final rule, "sex" discrimination includes discrimination on the basis of sexual orientation or gender identity. The Administration's contrary position is cruel and unlawful. The new final rule cannot stand.

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