Attorney General Aaron Ford is joining a coalition of 22 other state attorneys general in opposing the Trump administration’s recent proposal to eliminate protections established in the Affordable Care Act (ACA) for women who have an abortion, transgender individuals and people with limited English proficiency.
Section 1557 of the ACA requires any health-care program or activity that receives funding from the U.S. Department of Health and Human Services to provide meaningful access to health care for women, the LGBTQ community, limited English proficiency patients and individuals living with disabilities.
The administration proposes making changes that would remove legal protections against discrimination for women with a history of pregnancy termination and LGBTQ individuals, citing litigation on religious freedom laws and whether the legally accepted definition of “sex” includes “gender identity.” The federal government says the changes would save $3.6 billion over five years, largely because it would eliminate requirements to send “tagline” notices telling people they can receive important documents in other languages.
Ford and others want the proposed rule changes withdrawn.
“The Trump Administration wants to give out licenses to discriminate, and attorneys general like myself won’t tolerate it,” Ford said in a statement. He and other state attorneys general submitted a comment letter to Health and Human Services Secretary Alex Azar opposing the proposed changes.
The reason for the proposed changes, HHS says, is to better comply with the mandates of Congress, address legal concerns and avoid litigation, provide financial relief and eliminate provisions that are inconsistent or redundant with pre-existing civil rights statutes prohibiting discrimination on the basis of race, color, national origin, sex, age and disability.
But Ford and the 22 other attorneys general defended the ACA’s provisions.
“The 2016 Rule has played an essential role in encouraging historically marginalized populations to seek care,” their letter said. “The Proposed Rule would reverse and undo this progress. It would subject consumers and patients to discrimination and make it harder for them to access their entitled benefits.”
The proposal cites several existing non-discrimination laws and applies them to health care. The laws include Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973.
However, in applying these laws to health care, the new ruling eliminates the existing covered entities that fall in the category of “human services,” focusing non-discrimination language exclusively on health-care programs.
Democratic Sens. Jacky Rosen and Catherine Cortez Masto, who sent their own letter opposing the rule along with Senate colleagues, also complained that the rule reduced the scope of anti-discrimination provisions.
“Instead of embracing the law’s goal of expanding access to care and rooting out discrimination,” their letter said, “the proposed rule attempts to narrow protections only to programs and activities that receive direct federal funding or are entities created under Title I of the ACA and administered by HHS, which means private insurers and employer-sponsored health plans sold outside of the Marketplace may be partially or totally exempt and therefore assume they have license to discriminate.”
The rule also loosens the ACA’s rules on accommodating people who don’t speak English well.
According to the U.S. Census Bureau, 30 percent of Nevadans speak a language other than English and 12 percent speak English “less than very well.” Because of the diversity in languages spoken in the state, Nevada’s health-care organizations have a high demand for language-assistance services or interpretation access.
Hospitals and clinics can meet federal requirements by providing certified and qualified in-person interpreters or by using qualified video and telephone remote services.
The proposed rule would change the way the federal government enforces this law. The HHS suggested four factors that would determine whether the government would hold a hospital or clinic accountable for providing language access services, including the proportion of limited English proficiency individuals likely to be encountered and the costs of offering the services. Covered entities also would not be obligated to develop a written plan proving they are providing meaningful access and how.
The ruling also relaxes requirements on the use of video interpretation services, saying the costs may not be justified and suggests that foreign language speakers need only clear audio, not necessarily more expensive video equipment, for interpretation purposes.
The last day to submit comments on the proposal was Aug. 13, and the proposal becomes effective 60 days after the publication of the final rule.