Public Comment: Section 1557 of the ACA

By the Williams Institute

The issue: In June 2019, the Department of Health & Human Services proposed to roll back existing protections against sex stereotyping, gender identity, and sexual orientation discrimination in health care. The proposed regulation also aims to expand the ability of religious health care providers to refuse to provide care they find objectionable. It would eliminate requirements that health providers notify patients of their rights, limit their obligation to provide language assistance services for non-English speakers, and reduce the number of health insurers that have to comply with the law.

Section 1557, the nondiscrimination provision of the Affordable Care Act, was the first U.S. law to ban sex discrimination in federally funded health care. The existing rule, that HHS proposes to change, recognizes that the law bans discrimination in health care based on sex stereotyping and gender identity and provides remedies in many cases of sexual orientation discrimination as well.

Impact on LGBT people: If finalized, the proposed rule would affect all LGBT people, but particularly the nearly 7 million LGBT people who live in states without statutory protections against sexual orientation and gender identity discrimination in public accommodations. Under the proposed regulation, a health care provider could turn these LGBT Americans away when they seek medical care. The proposed rule may also limit access to health care for people with limited English proficiency, a disability, or other issues that create a barrier to care.

Comment summary: The exclusion of sex stereotyping, gender identity, and sexual orientation discrimination violates applicable law, the intent of the ACA (including Section 1557), and the mission of HHS. The proposed rule also stands to worsen discrimination and health disparities facing LGBT and other vulnerable populations.

The proposed rule incorrectly seeks to expand the authorization for religious providers to ignore the law, impermissibly narrows the scope of health programs that are covered by Section 1557, and inappropriately reduces nondiscrimination obligations in other ways.

Read the comment.

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