The Trump administration has proposed changes to rules against disability discrimination by healthcare providers and insurers under Section 1557 of the Affordable Care Act. While the current rules did not effectively protect Carrie Ann Lucas or Bill Peace, gutting those rules would only rob people with disabilities and others of a legal “leg to stand on” and make matters worse. Thanks to DREDF for providing electronic filing information and a template to help advocates file public comments on the proposed rule change, which are due by 11:59 pm today (August 13). Here is NDY’s comment letter.
August 13, 2019
Roger Severino
Director, Office for Civil Rights
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 509F
200 Independence Avenue SW
Washington, DC 20201
RE: HHS Docket No. HHS-OCR-2019-000, RIN 0945-AA11, Comments in Response to Section 1557 NPRM
Dear Mr. Severino:
Not Dead Yet is a national disability rights organization that opposes legalizing assisted suicide and advocates to prevent health care providers, healthcare insurers and other third parties from involuntarily withholding or withdrawing life sustaining healthcare.
We appreciate this opportunity to share our views on these proposed policy changes in interpreting and enforcing the nondiscrimination provision of the Affordable Care Act (ACA). We write to express opposition to the U.S. Department of Health and Human Services (HHS) proposed rule on Section 1557. The proposed rule would cause major harm to people with disabilities and their families and communities; it’s unfair, discriminatory and bad policy for this country. We recommend HHS not finalize this regulation in whole or in part.
Section 1557 and its implementing rules are critical because people with disabilities are routinely discriminated against in the provision of health care. Too many in our society, including healthcare providers, view significant disability as a fate worse than death
At the same time, insurers too often deny essential treatments needed by people with disabilities. This year, two members of Not Dead Yet’s Board of Directors died from conditions requiring treatment that insurance refused to cover. Both were highly educated professionals who fought for the care they needed. One needed an inhaled antibiotic, the other a therapeutic bed. Both wrote publicly about the denials they faced. If these strong advocates could be denied potentially lifesaving care, how much worse will other people with disabilities fare against such deadly discrimination
HHS underwent an extensive process to develop regulations for Section 1557, including a Request for Information, proposed rule, and final rule.[1] HHS considered more than 24,875 public comments submitted for the 2016 rule.[2] There is no reason to reopen this rule and ignore the reasoned process HHS has already undertaken.
We request that HHS retain the current definition of a “covered entity.” The proposed rule seeks to radically narrow the scope and applicability of Section 1557, contrary to the plain meaning of the statute. Congress made clear in Section 1557 that if one part of an entity receives federal financial assistance, the entire entity should be covered. It also clearly intended Section 1557 to address discrimination in health insurance.
We disagree with HHS’ proposal to delete the current requirement that covered entities provide notice, with every significant communication to individuals, that they do not discriminate based on disability or other prohibited grounds; that they provide auxiliary aids and services for people with disabilities, including qualified interpreters and information in alternate formats; and how to obtain those auxiliary aids and services. Without the notice, members of the public will have limited means of knowing that auxiliary aids and services are available, how to request them, what to do if they face discrimination, and their right to file a complaint.
HHS should retain strong, clear language prohibiting insurance companies from discriminating on the basis of race, color, national origin, sex, age, or disability in a number of areas, including marketing plans, designing benefits, coverage claims, or imposing additional costs. These protections are especially important for people with disabilities and those with serious or chronic conditions. Eliminating this regulatory provision could result in health insurers illegally excluding important benefits, designing their prescription drug formularies in a way that limits access to medically necessary care, or cherry-picking healthier enrollees through marketing practices. It may make it harder for people who experience discrimination to enforce their rights through administrative and judicial complaints.
Last, we note that people with disabilities, like all people, have intersectional identities, and that the anti-discrimination mandate in 1557 is designed to prohibit discrimination based on a single identity as well as the intersection of two or more identities such as race and disability, age and disability, or sex and disability. The proposed rule seeks to strip protections from persons with limited English proficiency, LGBTQ individuals, and women. We stand in solidarity with other marginalized groups in objecting to this proposed rule.
Thank you for the opportunity to provide comments on the proposed rule. We urge HHS not to finalize these changes. If you have questions about our comments, please contact Diane Coleman at email: dcoleman@notdeadyet.org or telephone 708-420-0539.
Sincerely,
Diane Coleman, JD
President/CEO
[1] U.S. Dep’t of Health & Human Servs., Request for Information Regarding Nondiscrimination in Certain Health Programs or Activities, 78 Fed. Reg. 46558 (Aug. 1, 2013); U.S. Dep’t of Health & Human Servs., Nondiscrimination in Health Programs and Activities (Notice of Proposed Rulemaking), 80 Fed. Reg. 54172 (Sept. 8, 2015); U.S. Dep’t of Health & Human Servs., Nondiscrimination on the Basis of Race, Color, National Origin, Sex, Age, or Disability in Health Programs or Activities Receiving Federal Financial Assistance and Health Programs or Activities Administered by the Department of Health and Human Services or Entities Established under Title I of the Patient Protection and Affordable Care Act, 45 C.F.R. Part 92, 81 Fed. Reg. 31376 (May 18, 2016)(hereinafter “2016 Final Rule”).
[2] 81 Fed. Reg. 31376.