“Anti-discrimination regulations must be expanded to protect more people, rather than scaled back.”
On Tuesday, CDF-Texas submitted the following Public Comment to the U.S. Department of Health and Human Services, urging them to reject proposed rule changes that would give healthcare providers implicit permission to discriminate against those they serve.
Mr. Roger Severino
Director, Office for Civil Rights
U.S. Department of Health and Human Services
200 Independence Ave. SW, Washington, DC 20201
Re: Nondiscrimination in Health and Health Education Programs and Activities
(Section 1557 NPRM), RIN 0945-AA11
I am writing to you on behalf of Children’s Defense Fund – Texas (CDF-TX) to strongly oppose the proposed changes to the HHS regulations in Section 1557 of the Patient Protection and Affordable Care Act (PPACA).
For 20 years, CDF-TX has worked to level the playing field for all children in Texas who cannot vote, lobby, or speak for themselves. We fight for affordable and accessible health coverage, quality education, stable families, and safe neighborhoods for children who need our support. We champion policies and programs that lift children out of poverty, protect them from abuse and neglect, and ensure their access to health care, quality education, and a strong moral and spiritual foundation. We at CDF-TX strongly urge HHS to leave Section 1557 unchanged, because the proposed changes to Section 1557 present an undue burden to vulnerable children and families.
CDF-TX believes that access to quality, affordable health care is vitally important to everyone, and that equal access to healthcare is a fundamental component of the equality on which our nation was founded. Section 1557 regulations made strides toward this goal by providing specific protections to historically marginalized communities. The proposed changes to this section abandon much of this progress. Anti-discrimination regulations must be expanded to protect more people, rather than scaled back. Specifically, the proposed changes create significant barriers in access to health care for (1) people who have or may become pregnant, (2) those with limited English proficiency (LEP), and (3) members of the LGBTQ+ community.
(1) People who have or may become pregnant.
The proposed changes attempt to bypass the court system by allowing individual healthcare providers to impose their religious views on reproductive health. By expanding healthcare providers’ ability to deny health care on a religious basis, HHS is making allowances that the court system has repeatedly found unconstitutional. Not only is this change detrimental to the people it will affect, but it also sets a dangerous precedent in which government agencies can deliberately pass regulations that defy the authority of the court system. Reproductive health care is vital to the stability of families and employers, especially in Texas, which has one of the highest maternal mortality rates in the nation. The proposed regulations would limit already-restricted access to the healthcare that people need before, during, and after pregnancy. Regardless of religious belief, access to reproductive health services is a physical and moral necessity.
(2)Those with limited English proficiency.
Access requires communication. Removing the availability of taglines, translated documents, written access plans, and translation services directly prevents many people from knowing their rights and using services to which they are entitled. HHS has a mandate to provide the same level of care to anyone regardless of language and literacy. Without adequate translation services, people with limited English proficiency will face a barrier to access that English speakers do not. Reducing a person’s access to health services based solely on their skills is discrimination. As HHS has a responsibility to protect against discrimination based on national origin, it is obligated to compel healthcare providers to provide patients with the tools they need to communicate. These tools include adequate translation services, taglines, written access plans, and clear notices. No potential cost savings can justify HHS abdicating this responsibility.
This proposed change would hurt hundreds of thousands of Texans. Over 700,000 families in Texas have limited English proficiency. When a change in policy would impede access to care for over 700,000 families, including more than 400,000 children, it should not be implemented.
(3) Members of the LGBTQ+ community
HHS cites conflicting court decisions to justify potentially removing discrimination against “gender identity” from the definition of discromination against “sex” in Section 1557. These changes attempt to alter HHS regulations based solely on a preliminary injunction made in a U.S. District Court in 2017. That case remains undecided, as do several similar cases pending in the Supreme Court, so to make changes based on it would be premature. As a government agency, HHS is mandated to protect all those that access its services, regardless of sex and religion. By removing the specific reference to a marginalized community, HHS gives tacit permission to healthcare providers to discriminate against that community. Beliefs concluding that gender identity is not a part of “sex” are irrelevant to the determinations HHS must make. HHS must determine protections based on research and consideration of the communities that are most marginalized and at risk. There is a growing body of evidence that sex and gender identity are inextricably related to each other and gender-affirming healthcare is necessary, especially for gender diverse children. By removing the specific reference to a marginalized community, HHS gives tacit permission to healthcare providers to discriminate against that community.
This proposed change would have a significant effect in Texas. Over 4% of the population in Texas is LGBTQ+, with about 29% raising children. A significant number of Texans, including Texan children, would be harmed by the proposed rollback in their protections.
CDF-TX strongly urges HHS to not proceed with the proposed changes to Section 1557. Allowing discrimination based on reproductive needs due to religious beliefs, discimination based on nationality in order to save money, and discrimination based on gender identity due to conflict in definitions are all unacceptable of a government agency that should be protecting all people. HHS should not proceed with the proposed changes that would allow healthcare providers that benefit from government money to discriminate against anyone, for any reason. Furthermore, HHS’s aim of creating consistency within its regulations would not be achieved by the proposed changes. Instead, by allowing select health care providers to disregard protections of minority groups, HHS would effectively be creating conflicting regulations within the healthcare providers it finances. The United States is a diverse country that cannot ignore the healthcare needs of marginalized communities. As such, government agencies must protect all the people they serve, no matter their identity.