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Comments to HHS on Proposed Weakening of Healthcare Nondiscrimination Rule

The Department of Health and Human Services (HHS) recently proposed a rule that would narrow the scope of civil rights protections for patients under the Affordable Care Act. We submitted comments that focus on serious flaws in HHS’s regulatory impact analysis for the proposal, which ignores potentially substantial costs to patients and makes unsupported claims regarding the proposal’s benefits.

Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in any federally funded health program. In a 2016 rule, HHS defined discrimination “on the basis of sex” to include, among other things, discrimination on the basis of sex stereotyping, gender identity, and termination of pregnancy. The 2016 rule also required healthcare entities to provide multi-language “taglines” on significant communications, to inform patients of available language assistance services. HHS is now proposing to eliminate the 2016 rule’s definition of “on the basis of sex” and its tagline requirements.

The 2016 rule was expected to increase access to healthcare coverage and services for women, transgender individuals, and patients with limited English proficiency. Eliminating key provisions of that rule can thus be expected to reduce access to care. But HHS does not account for this reduction—or its negative health consequences—in the impact analysis for the proposed rollback. HHS also improperly cites “increased freedom” for healthcare entities as a benefit of the proposal, without explaining why allowing healthcare entities greater latitude to discriminate against certain patient types is beneficial for society.