Suspend Issuance of Final Rule that would Undermine the Health Care Rights Law (Section 1557 of the Affordable Care Act)

View the full letter online here. 

May 20, 2020

The Honorable Alex Azar
Secretary
U.S. Department of Health and Human Services
200 Independence Avenue SW
Washington, DC 20201

Roger Severino
Director
Office for Civil Rights
U.S. Department of Health and Human Services
200 Independence Avenue SW
Washington, DC 20201

Derek Kan
Executive Associate Director
Office of Management and Budget
725 17th Street NW
Washington, DC 20503

Paul Ray
OIRA Administrator
Office of Management and Budget
725 17th Street NW
Washington, DC 20503

Seema Verma
Administrator
Centers for Medicare & Medicaid Services
7500 Security Boulevard
Baltimore, Maryland 21244

 

Re: Nondiscrimination in Health and Health Education Programs and Activities, Final Rule (RIN 0945-AA11)

Dear Secretary Azar and Mr. Severino:

On behalf of The Leadership Conference on Civil and Human Rights and the 280 undersigned organizations, we urge you, at a minimum, to suspend the issuance of this harmful final rule during the current COVID-19 national emergency, the growing economic recession, and increasing rates of unemployment.

The nation is now facing an unprecedented public health crisis that has cost over 90,000 lives.[1] While the death toll continues to rise, COVID-19 has strained our medical systems and essential workers, shuttered much of our economy, and is widely expected by public health experts to last for months to come.

We cannot imagine a more inappropriate and irresponsible time to publish a final rule that encourages discrimination and deprives patients of critical information about their rights and access to care. Already, people of color have been disproportionately affected by COVID-19. Latino and Black residents in New York City, for example, are dying at twice the rate of their white peers.[2] LGBT people, particularly LGBT people of color, are also uniquely vulnerable at this time. Additionally, the pandemic has caused a rise in racist harassment and hate crimes against Asian Americans, further instilling fear when seeking care free from discrimination. This rule would inappropriately authorize the denial of medical care — including testing and treatment for COVID-19 — to some populations at greatest risk from this deadly virus and worsen health disparities. That’s why this proposal was opposed by the nation’s leading associations of medical and mental health professionals, even before the current crisis.

As proposed by the U.S. Department of Health and Human Services, this rule would falsely tell hospitals and health plans that they could:

  • Refuse testing or treatment because a patient is transgender or doesn’t conform to sex stereotypes.
  • Refuse testing or treatment because a patient has had an abortion.
  • Refuse testing or treatment to patients based on a provider or staff member’s personal beliefs.
  • Refuse testing or treatment based on sexual orientation, even in programs that have banned such discrimination since the G.W. Bush administration.
  • Incorporate discriminatory plan benefit designs that eliminate/limit coverage critical to people with disabilities or preexisting conditions and place certain kinds of treatments needed by people with specific disabilities on the most expensive copay tiers.
  • No longer notify patients of their right to receive information in their primary language.
  • No longer notify patients of their right to file a grievance if they’re mistreated.

In addition to the potential for the substance of the rule to exacerbate the current crisis, there are several procedural reasons why publishing a final rule during this ever-evolving crisis is inappropriate and irresponsible.

First, the conditions of this crisis make it impossible for many critical stakeholders to engage in the Office of Management and Budget’s public input process, as required by Executive Order 12866.

Second, these conditions make it impossible for health care entities to familiarize themselves with implementing this sweeping rule change, which would alter dozens of provisions of the current rule and create unnecessary burdens. The rapidly evolving nature of the pandemic also makes it impossible to determine appropriate effective dates for any rule changes at this time.

Third, pending Supreme Court decisions on the scope of federal sex discrimination laws and challenges to the Affordable Care Act also make it unwise to issue a final rule at this time. These rulings could potentially have major implications for the scope and legality of the final rule. HHS should await these rulings and thoroughly consider their implications before pressing forward with a final rule.

For all these reasons, we urge you not to move forward with this final rule. At a minimum, this rulemaking process should be suspended until at least 90 days after the termination of the current COVID-19 Public Health Emergency declared by Secretary Azar on January 31, and after a large majority of states are no longer subject to stay-at-home orders and closure of non-essential businesses.

HHS has called COVID-19 “an emergency of unprecedented magnitude.” So far, the administration has failed to take the necessary steps to make testing, contact tracing, personal protective equipment, and other critical supplies available to save lives. We urge you to devote the full attention of your administration to this crisis and to suspend non-emergency rulemaking — especially rules such as this one that could exacerbate the pandemic. If you have any questions, please contact Emily Chatterjee, senior policy counsel, at chatte[email protected].

Sincerely,

The Leadership Conference on Civil and Human Rights

National Center for Transgender Equality

AbsoluteCARE Medical Center and Pharmacy

ACCESS

ACLU of Montana

Advocates for Youth

AFL-CIO

African American Ministers In Action

AIDS Alabama

AIDS Foundation Chicago

Alianza Nacional de Campesinas

American Association of People with Disabilities

American Association of University Women (AAUW)

American Atheists

American Civil Liberties Union

American Federation of Teachers

American Humanist Association

American Muslim Health Professionals

American Public Health Association

American Speech-Language-Hearing Association

Americans for Democratic Action (ADA)

Amnesty International USA

API Social Work Council

API Social Work Council Northern CA

APISWC (Asian Pacific Islander Social Work Council)

Appalachian Indivisible

Asian & Pacific Islander American Health Forum

Asian Americans Rising

Association for Chinese Families of the Disabled

Association for Community Affiliated Plans

Association of Asian Pacific Community Health Organizations (AAPCHO)

Association of People Supporting Employment First (APSE)

Athlete Ally

Atlanta Pride Committee

Bend the Arc: Jewish Action

Bridgercare

Cal Voices

California Black Women’s Health Project

California LGBTQ Health and Human Services Network

California Pan-Ethnic Health Network

Callen-Lorde Community Health Center

Center for American Progress

Center for Constitutional Rights

Center for Elder Law & Justice

Center for Health Progress

Center for Independence of the Disabled, NY

Center for Law and Social Policy (CLASP)

Center for Medicare Advocacy

Center for Public Policy Priorities

Center for Public Representation

Center for Reproductive Rights

Center for the Study of Hate & Extremism – California State University, San Bernardino

CenterLink: The Community of LGBT Centers

Centro de los Derechos del Migrante, Inc.

Chicago House and Social Services Agency

Children’s Aid

Chinese-American Planning Council (CPC)

Chronic Disease Coalition

Church World Service

Citizen Action of New York

Citizens’ Committee for Children of New York

Clearinghouse on Women’s Issues

Coalition for Asian American Children and Families

Coalition for Disability Health Equity

Coalition of Labor Union Women

Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR)

Community Catalyst

Congregation of Our Lady of Charity of the Good Shepherd, U.S. Provinces

Consumers for Affordable Health Care

Disability Rights Education & Defense Fund (DREDF)

East Bay Asian Youth Center

East Bay Community Law Center

East Bay Refugee and Immigrant Forum

Empire Justice Center

Episcopal Diocese of Atlanta

Equal Rights Advocates

Equality California

Equality Federation

Equality Florida

Equality Montana

Equality New Mexico

Equality North Carolina

Equality Ohio

Equality Texas

EqualityMaine

Equity Forward

Families USA

Family Equality

Female-To-Male International, Inc.

Feminist Majority Foundation

Feminist Women’s Health Center

FORGE, Inc.

Forward Montana Foundation

Forward Together Action

Gay City: Seattle’s LGBTQ Center

Gender Equality Montana

Gender Spectrum

Georgia Equality

Georgians for a Healthy Future

GLBTQ Legal Advocates & Defenders (GLAD)

GLMA: Health Professionals Advancing LGBTQ Equality

GLSEN

Greater New York Labor-Religion Coalition

Health Access California

Heartland Alliance

Heartland Resistance Coalition, an Indivisible group

Hispanic Federation

Hmong Cultural Center of Butte County

Housing Choice Partners

HPEACE

Human Rights Campaign

Ibis Reproductive Health

Immigration Equality

Impact Fund

Indivisible Brookfield

Indivisible CA-33

Indivisible Georgia Coalition

Indivisible Houston

Indivisible Il9

Indivisible Illinois

Indivisible Lumpkin

Indivisible Madison (WI)

Indivisible Marching Buddies of Atlanta

Indivisible Metro East

Indivisible San Francisco

interACT: Advocates for Intersex Youth

Interfaith Alliance

International Association of Providers of AIDS Care

International Community Health Services

Jewish Women International

Justice in Aging

JustUs Health

Kentucky Equal Justice Center

Kentucky Mental Health Coalition

Kentucky Voices for Health

Korean Community Center of the East Bay

La Clinica de La Raza

Labor Council for Latin American Advancement

Lambda Legal

Lavender Rights Project

League of Women Voters of the United States

LGBT Bar Association of Greater New York

LGBTQ Connection

Long Term Care Community Coalition

Matthew Shepard Foundation

Mazzoni Center

Mental Health America of California

Mental Health America of Kentucky

Mercy Care

Methodist Federation for Social Action

Metro New York Health Care for All

MomsRising

Montana Chapter of the American Academy of Pediatrics

Montana Coalition Against Domestic and Sexual Violence

Montana Gender Alliance

Montana Human Rights Network

Movement Advancement Project

NAACP

NARAL Pro-Choice America

NASTAD

National Advocacy Center of the Sisters of the Good Shepherd

National Asian Pacific Center on Aging (NAPCA)

National Association of Area Agencies on Aging (n4a)

National Association of Councils on Developmental Disabilities

National Association of Human Rights Workers

National Association of Social Workers

National Association of Social Workers (NASW) California Chapter

National Black Justice Coalition

National Center for Lesbian Rights

National Center for Youth Law

National Coalition Against Domestic Violence

National Coalition for LGBT Health

National Consumers League

National Council of Jewish Women

National Council on Independent Living

National Disability Rights Network

National Employment Law Project

National Employment Lawyers Association

National Equality Action Team

National Health Care for the Homeless Council

National Health Law Program

National Hispanic Council on Aging

National Human Services Assembly

National Indian Education Association

National Korean American Service & Education Consortium (NAKASEC)

National LGBT Cancer Network

National LGBTQ Task Force

National Partnership for Women & Families

National Queer Asian Pacific Islander Alliance (NQAPIA)

National Trans Bar Association

National Women’s Health Network

National Workrights Institute

Native Directions Inc.

Necessary Trouble Indivisible

New York Immigration Coalition

New York Legal Assistance Group

NM Center on Law & Poverty

Oasis Legal Services

OCA-Asian Pacific American Advocates

Office of the Health Care Advocate, Vermont Legal Aid

One Colorado

Openhouse, San Francisco

Orange County United Way

Out2Enroll

OutFront Minnesota

OutNebraska

Papa Ola Lokahi

People For the American Way

People’s Action

PFLAG National

Planned Parenthood Federation of America

Positive Transformations Psychotherapy

Positive Women’s Network-USA

Power to Decide

PowerOn, a program of LGBT Technology Institute

Prepare To Bloom, LLC

Pride at Work

Pride Center of Vermont

Progressive Leadership Alliance of Nevada

Public Advocacy for Kids (PAK)

Public Citizen

Quest Family Therapy / Gender Health Training Institute

Rabbinical Assembly

Racial & Ethnic Mental Health Disparities Coalition (REMHDCO)

Religious Coalition for Reproductive Choice

RESULTS

Rural Coalition

SAGE: Advocacy and Services for LGBT Elders

Santa Cruz Community Health

Santa Cruz Dyke Trans March

SC Appleseed Legal Justice Center

Shriver Center on Poverty Law

Silver State Equality-Nevada

SisterSong: National Women of Color Reproductive Justice Collective

Society for Maternal-Fetal Medicine

South Asian Network

Southern Black Policy and Advocacy Network

Southern Legal Counsel, Inc.

Southern Poverty Law Center

St. Louis STI Regional Response Coalition

TASH

Tennessee Justice Center

The AIDS Institute

The American Liver Foundation

The California Youth Empowerment Network

The Center for Sexuality & Gender Diversity

The Gerontological Society of America

The Lesbian, Gay, Bisexual & Transgender Community Center

The Progressive Vietnamese American Organization

The Trans 100

The Trevor Project

The United Methodist Church – General Board of Church and Society

The Volunteer Lawyers Project of Onondaga County, Inc.

The Womxn Project (TWP)

Trans Pride Initiative

Transgender Law Center

Transgender Legal Defense & Education Fund

Transgender Resource Center of New Mexico

TransVisible Montana

True Colors United

UHCAN Ohio

UnidosUS

Union for Reform Judaism

UNITED SIKHS

United Way Worldwide

United We Dream

Urban Strategies, Public Policy and Immigrant Affairs, Oakland, California

URGE: Unite for Reproductive & Gender Equity

VIETNAMESE AMERICAN COMMUNITY CENTER OF THE EAST BAY

Vietnamese American Community Center of the East Bay

Voices for Progress

Volunteer Lawyers Project of Onondaga County, Inc.

WAMM Phytotherapies

We All Rise

We’ve Been Too Patient

West Indivisible Suburban Engagement

West Virginians for Affordable Health Care

Western Front Indivisible

Whitman-Walker Health and Whitman-Walker Institute

WHOLE SYSTEMS LEARNING

Young Invincibles

[1] “Cases in the US.” CDC. May 19, 2020. https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.

[2] Crear-Perry, Joia and McAfee, Michael. “To Protect Black Americans from the Worst Impacts of COVID-19, Release Comprehensive Racial Data.” Scientific American. April 24, 2020.https://blogs.scientificamerican.com/voices/to-protect-black-americans-from-the-worst-impacts-of-covid-19-release-comprehensive-racial-data/.