Specifically, the proposal would limit the number of health programs subject to Section 1557, and it would narrow the scope of the protections under Section 1557 in the following ways:
- Gender identity and sex stereotyping would be completely eliminated from the definition of sex discrimination, the definition of gender identity would be eliminated, and all references to sexual orientation in HHS regulations would be erased. This could allow healthcare providers to deny transgender people gender-affirming care, and would result in queer and trans people being significantly less likely to get quality healthcare and more likely to face discrimination, abuse, or refusals of care.
- Requirements for notices and taglines that let people with Limited English Proficiency (LEP) know about language access services, including services for disabled people, would no longer be required.
- Healthcare providers would be able to refuse care and justify it under Title IX’s religious exemption. This would allow healthcare providers to discriminate against or deny abortions, reproductive health services, or other health services that a provider says violates their religious beliefs.
- The ban on insurance plan discrimination on the basis of disability, age, and other factors would be removed, which would disproportionately impact people with disabilities and chronic illnesses. The removal of protections around benefit design would disproportionately impact people with HIV/AIDS and other disabilities and chronic illnesses that may be treated or managed with more expensive medications or other treatments.
- The requirement for healthcare providers to share notices that inform people of their nondiscrimination policy, their rights, how to file complaints if they are discriminated against, and other information would be completely eliminated.
All the above proposed changes will impact disabled people. In addition, the Administration is specifically seeking comments on questions related to disability access. Specifically, they have asked for feedback regarding:
- Effective Communication: Whether to remove the requirement for covered providers with less than 15 employees to provide auxiliary aids and services.
- Accessibility Standards: Whether to continue to apply the 2010 ADA Standards to all entities under Section 1557, specifically in regard to benefits to disabled people versus burdens on private entities (see 45 CFR 92.103).
- Reasonable Modifications: Whether to keep current language regarding accommodations that is derived from Title II of the ADA, or to substitute with language conforming to Section 504 of the Rehabilitation Act. Current language (based on the ADA) states that covered entities must make reasonable modifications to policies, practices, or procedures when necessary to avoid discrimination on the basis of disability, except if the modification would fundamentally alter the nature of the health program or activity. Proposed new language (based on the Rehabilitation Act) states that covered entities shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability. In this section, they also seek comment on whether to include an exemption for “undue hardship” (see 45 CFR 92.105).
It is clear that if this attempted rollback is finalized, disabled people and many others will be significantly less likely to receive quality healthcare or to file grievances when discriminated against. Disabled people would also not be provided with the resources they need to know about those things in the first place.
The comment period closes on August 13, 2019 at 11:59 Eastern, so please submit comments as soon as possible! Your comments should explain why you oppose this proposed change, and you should address as many of the specific proposed changes and questions as possible. This is a cruel attack on people who already experience discrimination in healthcare settings, and this proposal will only make things worse. We must ensure the Administration hears from as many of us as possible!
Comments can be submitted online through the Federal eRulemaking Portal (preferred) or by mail.
- Federal eRulemaking Portal: You may submit electronic comments at regulations.gov/comment?D=HHS-OCR-2019-0007-0001 or by going to regulations.gov and searching for the Docket ID number HHS-OCR-2019-0007. Click on “Comment Now” and you can type your comments into the comment box or upload a document.
- Regular, Express, or Overnight Mail: Your comments must be postmarked by the comment submission deadline (August 13, 2019). You may mail comments to U.S. Department of Health and Human Services, Office for Civil Rights / Attention: Section 1557 NPRM, RIN 0945-AA11 / Hubert H. Humphrey Building, Room 509F / 200 Independence Avenue SW / Washington, DC 20201.