August 13, 2019
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
ASAN Comments Re: Proposed Rule, “Nondiscrimination in Health and Health Education Programs or Activities” (published June 14, 2019; 84 FR 27846, Docket No. HHS-OCR-2019-0007, RIN 0945-AA11)
Dear Department of Health and Human Services,
The Autistic Self Advocacy Network (ASAN)[1] appreciates the opportunity to offer comments on the above-captioned rule proposed by the U.S. Department of Health and Human Services (HHS). The proposed rule makes sweeping changes to the regulations governing Section 1557 of the Affordable Care Act (ACA), a provision of the law which prohibits discrimination on the basis of “race, color, national origin, sex, age, or disability under any health program or activity that receives Federal financial assistance.”[2]
The proposed rule would amend the regulations governing Section 1557 to exclude discrimination based upon gender identity and termination of pregnancy from the definition of sex discrimination.[3] The proposed rule also eliminates parts of other regulations which prohibit sexual orientation and gender identity-related discrimination.[4] The proposed rule exempts many health insurance providers and some of their insurance plans – when the business’ primary purpose is providing health insurance rather than directly providing healthcare – from Section 1557.[5] It also makes revisions to the notice and tagline requirements of Section 1557,[6] which would reduce the accessibility of healthcare information to people with limited English proficiency and people with disabilities.
ASAN strongly opposes the proposed rule. ASAN represents a diverse community of autistic people, who are disproportionately likely to be LGBTQ.[7] We depend upon the aid of federal programs such as Medicaid and public health insurance to provide us with the supports, services, and treatments we need to remain productive members of our communities.[8] The effect of the proposed rule will be to deny countless people with disabilities and others outside our community full access to healthcare and critical disability-related supports. Moreover, the proposed rule is based on arbitrary and unduly limited notions of discrimination that are contradicted by a substantial body of federal law, policy, and court rulings. ASAN therefore urges HHS to withdraw the proposed rule.
ASAN’s further comments on specific issues of interest are detailed below.
ASAN objects to the proposed rule’s revisions to the definition of discrimination “on the basis of sex” and its revisions to other sex discrimination-related provisions of the regulations, which would entirely omit discrimination based on gender identity.
The proposed rule’s elimination of gender identity from sex discrimination would almost invariably lead to provider refusal to treat people solely on the basis of their gender identity and presentation. The proposed rule also eliminates provisions which prohibit health care providers from imposing higher cost-sharing requirements when a transgender person seeks medical services normally sought by one sex or gender (such as a transgender man who is seeking pregnancy-related services), as well as provisions that prohibit health care providers from refusing to perform services related to gender transition when they are covered in other circumstances (such as a hysterectomy for gender dysphoria).[9]
LGBTQ people already face significant health disparities. According to the 2015 U.S. Transgender Survey, 33 percent of transgender people had some negative healthcare experience on the basis of their gender identity (such as being verbally harassed or refused treatment) and 23 percent avoided doctors’ visits entirely due to fear of such discrimination.[10] The Center for American Progress reports that, among lesbian, gay, bisexual, and other queer people, 8 percent who had seen a healthcare provider in the year before its survey had been refused care based upon their sexual orientation.[11] LGBTQ people are at a higher risk of contracting many different health conditions, including HIV, psychiatric disabilities, cancer, and substance use disorders.[12]
LGBTQ people cannot always simply seek an alternative healthcare provider. LGBTQ people report that finding alternative providers for the medical services they need is difficult. When surveyed by the Center for American Progress, 18 percent of LGBTQ people stated that it would be “very difficult or not possible” to find the same type of service at a different hospital, and 17 percent said it would be the same level of difficulty to find their current services at a different community health center or clinic.[13] A third to nearly half of LGBTQ living outside of major metropolitan areas said it would be difficult to find equivalent services.[14] These difficulties will only be compounded upon further for low-income people, particularly the many low-income people with chronic health conditions or disabilities. The proposed rule’s changes would exacerbate health disparities and dramatically impair the health of a vulnerable population with scant justification.
The proposed rule also incorporates provisions of Title IX which state that religiously-run organizations do not have to follow those parts of the anti sex discrimination law that conflict with their religious beliefs.[15] These provisions further harm LGBTQ individuals and are inconsistent with the language and context of both Title IX and the ACA.
Title IX’s blanket religious belief exemption is statutory and states unambiguously which institutions it applies to (institutions “controlled by a religious organization”).[16] The text of Section 1557 does not include similar language.[17] It is reasonable to assume from this difference in statutory language that Congress did not intend for a blanket religious exemption to apply to Section 1557 at all — particularly since the ACA otherwise incorporates antidiscrimination and enforcement provisions from Title IX and other federal civil rights laws.[18] HHS reading a broad religious exemption into the statute without further justification therefore is inconsistent with it.
Title IX and Section 1557 also concern very different subjects and address very different types of discrimination. Title IX’s provisions were designed for educational institutions, in situations in which individuals can choose whether or not they want to attend a religious school.[19] A religious healthcare provider, on the other hand, may be the only provider in a given area of the country (such as in a rural area) and is providing treatment that may be the difference between life and death.[20] This is a qualitatively different situation from the one contemplated by Congress during Title IX’s passage, and requires a different approach. The drafters of Section 1557’s regulations recognized this and instead provided individualcase by case exemptions for situations in which the regulations do place a severe burden on a specific organization’s sincerely held religious beliefs and there are no viable alternatives.[21] In light of these circumstances, an additional blanket ban is unnecessary and unjustified.
ASAN condemns the proposed rule’s strong negative impact on the lives and welfare of LGBTQ people with disabilities, including people with intellectual and developmental disabilities (I/DD).
The proposed rule makes changes to many other HHS regulations that mention gender identity or sexual orientation.[22] It refers to these changes as “conforming amendments.”[23] Among the regulations changed are those governing state Medicaid programs and Medicaid managed care, as well as those governing the Marketplaces and programs for the elderly in Medicare.[24] Specifically, the proposed rule removes gender identity and sexual orientation from these regulations, which otherwise require providers to offer accessible, culturally competent services in a nondiscriminatory manner.[25]
Medicaid is a critical source of health coverage for many low-income people and those with expensive, chronic health conditions. Medicaid also acts as the primary source of funding for long term services and supports (LTSS), which are services that help people with disabilities perform activities of daily living and support ourselves.[26] Many of these services are provided in the community through a state’s home and community based services (HCBS) waivers.[27] These services are absolutely vital to the survival and well-being of people with disabilities. The presence of a personal care attendant or a job coach for example, can make it possible for a person with a disability to work and interact with the community.
Despite person-centered planning requirements, very few Medicaid beneficiaries have a genuine choice about which service providers they will use. Some states in fact have designated LTSS providers, which are Medicaid-funded providers that are required to service a particular area or county in the state.[28] Other providers in the local area may refuse customers as long as they do so for a nondiscriminatory reason. If a person’s designated Medicaid service provider refused to provide them with services due to their gender identity or sexual orientation, they would often be hard-pressed to locate an equivalent provider — an even more significant problem for people who cannot access self-directed LTSS services. Removing these critical protections of LGBTQ people from Medicaid would lead to a profound loss of independence and productivity for countless LGBTQ people with disabilities and may result in unnecessary institutionalization, in violation of the Supreme Court’s decision in Olmstead v. L.C.[29]
HHS’ claim that existing regulations’ interpretation of sex discrimination is novel, unprecedented, and needs to be changed is contrary to the evidence.
As noted above, the proposed rule would set aside existing regulations interpreting sex discrimination that include discrimination based upon gender identity. HHS justifies its decision in part by claiming that the regulations adopted an unusual or novel interpretation of sex discrimination under civil rights law.[30] ASAN disagrees.
HHS cites to a string of federal cases to show that federal courts rule inconsistently on the issue of gender identity.[31] However, the existing regulations’ interpretation of sex discrimination is hardly unprecedented. The Supreme Court actually ruled in Price Waterhouse v. Hopkins in 1989that discrimination against people who did not conform to gender expectations constituted discrimination on the basis of sex stereotyping and was therefore sex discrimination. Numerous federal district courts have extended the reasoning in Price Waterhouse and held that discrimination based on transgender identity constituted sex discrimination.[32] According to HealthAffairs, in fact, every district court who examined the issue in the past two years concluded that Section 1557 itself – rather than just its regulation – prohibits discrimination against transgender people.[33] Multiple circuit courts have also ruled that federal sex discrimination laws protect people from discrimination upon this basis.[34] Ignoring the nearly thirty years of judicial precedent for the interpretation of sex discrimination used in Section 1557 and stating that its writers were proposing “a relatively novel legal theory” when the regulations were adopted is both disingenuous and dishonest.[35]
Moreover, HHS erroneously cites certain cases as having “declined to recognize gender identity discrimination” when in fact they did not issue a holding on the issue.[36] HHS’ citation of Evancho as a court that has ruled that Title IX does not protect against gender identity-based discrimination is disingenuous.
HHS additionally states that other federal agencies (such as the U.S. Department of Justice) and other divisions of HHS (besides those divisions of HHS which released this proposed rule) such as NIH, have adopted definitions of “sex” that are contrary to the way in which “sex” is used within the regulations.[37] This justification is inconsistent with the purpose of Section 1557. Two of the other HHS-run agencies HHS cites as having distinguishable policies – the National Institutes of Health and the Office of Refugee Resettlement – are also pursuing goals that are dramatically different from that of protecting individuals from discrimination.[38] HHS cannot reasonably argue that “sex” in the context of, for example, investigating effective treatments for medical conditions means the same thing or warrants the same definition that it does in the context of sex discrimination. With respect to other federal agencies, such as the U.S. Department of Justice, HHS itself notes that their positions on these issues have changed or even been reversed at various times and during various administrations.[39] This is not consistent with the idea that HHS’ position is in any way novel, unjustified, or previously unused by a federal agency.
The current Section 1557 regulations were, contrary to the statements in the proposed rule, the product of an extensive public comment process which considered the potential harm to all individuals, including individuals with disabilities. 24,875 public comments were submitted and considered by HHS.[40] ASAN urges HHS not to arbitrarily set aside the current regulations, which are consistent with the overwhelming thrust of those deliberations and available evidence.
ASAN opposes the proposed rule’s changes to Section 1557’s requirements concerning a provider’s obligations to offer effective communication to individuals with disabilities.
The proposed rule removes a “notice and tagline” requirement, which requires providers to offer assurances that auxiliary aids and services are available to individuals with disabilities who need them to understand documents related to their health.[41] This change will lead many individuals with disabilities — particularly people with intellectual and developmental disabilities (I/DD) — to be unaware of their right to such services. This will leave them bereft of any means of comprehending vital information about their own diagnosis and treatment. ASAN firmly opposes the removal of the notice and tagline requirement on these grounds alone.
The proposed rule also proposes to incorporate the definition of “auxiliary aids and services” from the regulations implementing Title II of the ADA, but changes the definition of “auxiliary aids and services” without explanation to omit “[a]cquisition or modification of equipment and devices; and [o]ther similar services and actions” from the list of examples of aids and services.[42] This change will confuse providers and people with disabilities looking to enforce our rights and will lead both groups to assume the list in Section 1557 is exhaustive. ASAN therefore opposes this change.
The proposed rule also asks commenters whether it should exempt employers with less than 15 employees from the requirement at 45 C.F.R. § 92.202 to provide auxiliary aids and services to individuals with disabilities, which help to “ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities.”[43]
ASAN strongly opposes this proposal because it would reduce our access to many health providers unnecessarily and without cause. There is nothing in the ACA or any other federal law which would require that HHS make such a change to the present regulations. In fact, the new standard would if added be inexplicably inconsistent with the standard present in Title III of the Americans with Disabilities Act, which requires the same businesses to provide effective communication to individuals with disabilities.[44] The existence of two competing regulatory standards will likely do nothing other than confuse small health care offices as to which one they should follow.
The change is highly likely to harm many consumers. The majority of doctors’ offices have fewer than 10 employees, and this percentage may be even higher in rural areas.[45] Making such a change may have the effect of denying many individuals meaningful access to a provider that is within a reasonable distance of their residence. ASAN also opposes the change on this basis.
ASAN opposes changes made in the proposed rule which would limit or entirely eliminate access to healthcare and healthcare information for people with limited English proficiency (LEP).
Access to healthcare necessarily requires that all information about health be provided in a way that is clear and comprehensible. In a diverse country, this means that healthcare-related documents and communications should be offered in a beneficiary’s native language.
Nonetheless, the proposed rule removes critical components of Section 1557’s regulations which accomplish precisely that for people with limited English proficiency (LEP). As noted, the proposed rule removes the “notice and tagline” requirement, which also requires providers to include a notice that language assistance services are available in the 15 most used languages in each state in each relevant health record sent to beneficiaries.[46] The rule also changes the standard for language access from one in which the provider must offer “meaningful access to each individual with limited English proficiency”[47] to one in which the provider only need offer “meaningful access to such programs or activities by limited English proficient individuals,”[48] without reference to each specific individual.
Both changes would have the effect of reducing the accessibility of healthcare for LEP individuals, including LEP individuals with disabilities. Without awareness that their health records can be translated into their native language by their provider (as provided for most individuals by the notice and tagline requirements) LEP individuals may not be able to obtain health-related information in the language they best understand. This may result in a misunderstanding of their diagnosis, treatment options, medications, appointments, and current health situation — which may lead to worse health outcomes or even death. The change in language access standards only worsens the problem. As the standards only require that services be accessible to LEP individuals rather than each specific LEP individual, they may lead to a situation in which no one is available at the provider who can translate into a specific beneficiary’s native language. For example, a provider may believe that it can comply with Section 1557 by offering translation into a few commonly spoken languages, but not offering language services to a specific patient who speaks a less common language.
HHS’ justification for the proposed changes are largely that the notice and tagline requirements of the rule are expensive and that they irritate, confuse, and overburden English-speaking consumers.[49] This concern cannot possibly outweigh the importance of ensuring that a person’s medical information is comprehensible to them. ASAN therefore strongly opposes this provision of the rule and urges HHS to consider the right of all consumers to effective communication of their vital healthcare information.
ASAN opposes changes to the proposed rule that are contrary to the intent of Congress when enacting the ACA and effectively exempt many if not most health insurance companies and health insurance plans from Section 1557.
The proposed rule provides that only entities who are “principally engaged in the business of providing health care” and receive federal financial assistance are bound by Section 1557, and that providing health insurance is qualitatively different from providing health care.[50] Under the proposed rule, health insurance companies would only be obligated to comply with Section 1557 with respect to programs or activities of theirs that involved providing health care (or activities governed by the Title I of the Patient Protection and Affordable Care Act (ACA) such as the Marketplace plans) and for which the company received federal financial assistance.[51] For example, a health insurer’s Marketplace plans could be covered by Section 1557, but not its non-federally-funded private insurance plans or short-term limited-duration insurance (STLDI). Employer-sponsored plans also would be largely exempt.
This change is wholly contrary to Congress’ intent. The plain text of the Affordable Care Act itself clearly indicates that Congress intended the full statute to apply to private insurers and insurance programs. The Affordable Care Act repeatedly refers to “employer-sponsored health plans,” “health insurance issuers,” and “coverage.”[52] The ACA’s provisions do not merely createnew health insurance plans to which the rules apply. The ACA also applies new rules which existing plans must follow irrespective of whether they are administered by a private company or by the federal government, such as the prohibition against pre-existing conditions. Additionally, when referring specifically to providers of health care services of the kind contemplated by the proposed rule, the ACA uses the term “health care provider” and the term “health care services” instead of “health care program or activity.”[53] Given the construction of the statute, if Congress intended to exclude a large number of private health insurance plans from Section 1557, it almost certainly would have included statutory text making the exclusion.
Furthermore, the entire purpose of the Affordable Care Act was to enhance and improve individuals’ access to health insurance coverage. Both Congressional and public debate preceding the legislation’s passage — including debate concerning the nondiscrimination provisions —largely concerned access to health care and insurer discrimination against patients. HHS’ interpretation of Section 1557 so as to exclude most health insurance coverage therefore makes very little sense.
ASAN also opposes the change because it is bad policy that will ultimately harm consumers and undermine the federal government’s authority.[54] Exempting employer-sponsored health insurance plans and many other private insurance plans but not Marketplace plans allows private insurers to enjoy significant federal tax subsidies without having to even comply with minimum civil rights protections for consumers.[55] Preferential tax treatment for health insurance companies and employment-sponsored health insurance plans cost the federal government $225 billion in tax revenue in 2018.[56] If the goal of the regulation is to avoid interpreting a federal law so as to cover those who are not accepting government health care-related funds, this goal is not accomplished by exempting health insurers from Section 1557.
Exempting most employer-sponsored and private insurance plans from Section 1557 also makes little sense if the purpose of the change is to, as the proposed rule states, exempt entities that are not “principally engaged in the business of providing health care.”[57] Health insurance sellers today do not just help individuals pay for healthcare. They often, through the use of in-network and out of network providers and covered and non-covered therapies, dictate which doctors their clients will see and what kind of treatment their clients will get.[58] Under these circumstances, the distinction between health care providers and health insurers for the purposes of defining the phrase “principally engaged in the business of providing healthcare” is nonexistent.[59] Covering one kind of entity and not the other, and some health insurers but not others, is inconsistent with the purpose of the ACA and Section 1557.
The proposed change on its face also facilitates discrimination by insurers. For example, a health insurer’s Marketplace plans could be covered by Section 1557, but not its non-federally-funded private insurance plans or short-term limited-duration insurance (STLDI). Employer-sponsored plans also would be largely exempt.[60] Such a change prevents individuals who have been discriminated against by one of these plans from bringing a claim under Section 1557 and thereby their avenues for relief. Although the ADA and Section 504 have always acted as protections against disability discrimination, the judiciary rarely if ever applies these laws to health insurance benefits and coverage design.[61] The result will be that health insurance companies will likely once again engage in discriminatory practices that exclude people with disabilities, such as arbitrarily refusing to cover services for some specific group of people with disabilities (for instance, speech-language pathologist services for autistic people) but covering that service for other groups (people recovering from a traumatic brain injury).
ASAN strongly encourages
HHS to retract this proposed rule. Its application would have a
disproportionate negative impact on many members of the communities ASAN
serves, including people with disabilities — particularly LGBTQ people with disabilities
and people of color with disabilities. For more information on ASAN’s support
of the current Section 1557 regulations and the disability rights community’s
opposition to the proposed rule, please contact Samantha Crane, our Director of
Legal and Public Policy, at scrane@autisticadvocacy.org.
[1] ASAN, a 501(c) (3), non-profit organization, is the nation’s leading self-advocacy organization by and for autistic people ourselves. Our mission is to advance the social and civil rights of Autistic people and other individuals with disabilities. For more information on ASAN, go to https://autisticadvocacy.org/
[2] Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. 27846, 27847 (June 14, 2019) (to be codified at 42 C.F.R. §§ 438, 440, and 460 and 45 C.F.R. §§ 86, 92, 147, 155, 156).
[3] 84 Fed. Reg. at 27853-27856.
[4] 84 Fed. Reg. at 27871.
[5] 84 Fed. Reg. at 27850, 27862-863.
[6] 84 Fed. Reg. at 27869, 27879-27883.
[7] R. George and M.A. Stokes, Sexual Orientation in Autism Spectrum Disorder, 11 Autism Research 133, 133-141 (2018); John Strang, Why we need to respect sexual orientation, gender diversity in autism, Spectrum News, (November 27, 2018), https://www.spectrumnews.org/opinion/viewpoint/need-respect-sexual-orientation-gender-diversity-autism/; Evan Urquhart, A Disproportionate Number of Autistic Youth Are Transgender. Why? Slate (March 27, 2018, 1:33 PM), https://slate.com/human-interest/2018/03/why-are-a-disproportionate-number-of-autistic-youth-transgender.html.
[8] See Autistic Self Advocacy Network, ASAN Resources on Coverage for Autism-Related Services, https://autisticadvocacy.org/policy/toolkits/healthcoverage/ (last visited July 18, 2019); MaryBeth Musumeci, Priya Chidambaram, and Molly O’Malley Watts, Medicaid Home and Community-Based Services Enrollment and Spending, (April 4, 2019), https://www.kff.org/medicaid/issue-brief/medicaid-home-and-community-based-services-enrollment-and-spending/.
[9] MaryBeth Musumeci, Jennifer Kates, Lindsey Dawson, Alina Salganicoff, Laurie Sobel, and Samantha Artiga, HHS’ Proposed Changes to Non-Discrimination Regulations Under ACA Section 1557, Kaiser Family Foundation (July 1, 2019), https://www.kff.org/disparities-policy/issue-brief/hhss-proposed-changes-to-non-discrimination-regulations-under-aca-section-1557/.
[10] Candace Gibson, Wayne Turner, National Health Law Program, Questions and answers on the proposed rollback of nondiscrimination protections under the ACA’s Section 1557 4 (June 14, 2019), https://9kqpw4dcaw91s37kozm5jx17-wpengine.netdna-ssl.com/wp-content/uploads/2019/06/1557-Reg-Revision-QA-updated-6.14.2019.pdf; National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey 5 (2016), https://transequality.org/sites/default/files/docs/usts/USTS-Full-Report-Dec17.pdf.
[11] Shabab Ahmed Mirza and Caitlin Rooney, Discrimination Prevents LGBTQ People from Accessing Health Care, Center for American Progress (January 18, 2018, 9:00 A.M.), https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/discrimination-prevents-lgbtq-people-accessing-health-care/.
[12] National LGBT Health Education Center, Understanding the Health Needs of LGBT People 5-6 (March 2016), https://www.lgbthealtheducation.org/wp-content/uploads/LGBTHealthDisparitiesMar2016.pdf.
[13] Shabab Ahmed Mirza and Caitlin Rooney, Discrimination Prevents LGBTQ People from Accessing Health Care.
[14] Shabab Ahmed Mirza and Caitlin Rooney, Discrimination Prevents LGBTQ People from Accessing Health Care.
[15] 84 Fed. Reg. at 27864-865; 20 U.S.C. § 1688 (Title IX abortion exemption); 20 U.S.C. § 1681(a) (3) (Title IX religious belief exemption).
[16] 20 U.S.C. § 1681(a) (3).
[17] 42 U.S.C, § 18116.
[18] 42 U.S.C, § 18116(a) (“Except as otherwise provided for in this title … an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) … Be subjected to discrimination … The enforcement mechanisms provided for and available under such title VI, title IX … shall apply”).
[19] MaryBeth Musumeci, Jennifer Kates, Lindsey Dawson, Alina Salganicoff, Laurie Sobel, and Samantha Artiga, HHS’ Proposed Changes to Non-Discrimination Regulations Under ACA Section 1557, Kaiser Family Foundation (July 1, 2019), https://www.kff.org/disparities-policy/issue-brief/hhss-proposed-changes-to-non-discrimination-regulations-under-aca-section-1557/.
[20] Id.
[21] 81 Fed. Reg. 31379-31380.
[22] 84 Fed. Reg. at 27871.
[23] Id.
[24] Id.
[25] 84 Fed. Reg. at 27871; 42 C.F.R. § 438.206 (c)(2) (“Each MCO, PIHP, and PAHP participates in the State’s efforts to promote the delivery of services in a culturally competent manner to all enrollees … regardless of gender, sexual orientation or gender identity”); 42 C.F.R § 440.262 (“methods to promote access and delivery of services in a culturally competent manner to all beneficiaries … and regardless of gender, sexual orientation or gender identity”); .42 C.F.R. § 438.3(d)(4) (The MCO, PIHP, PAHP, PCCM or PCCM entity will not discriminate against individuals eligible to enroll on the basis of … sexual orientation, gender identity, or disability and will not use any policy or practice that has the effect of discriminating on the basis of … sexual orientation, gender identity, or disability”).
[26] Centers for Medicare and Medicaid Services, Long Term Services and Supports, https://www.medicaid.gov/medicaid/ltss/index.html (last visited July 29, 2019).
[27] Erica L. Reaves and MaryBeth Musumeci, Medicaid and Long Term Services and Supports: A Primer, Henry J. Kaiser Family Foundation (December 15, 2015), https://www.kff.org/medicaid/report/medicaid-and-long-term-services-and-supports-a-primer/.
[28] See, e.g., Vermont Department of Disabilities, Aging, and Independent Living, Developmental Disabilities Services Division, Designated Agencies, https://ddsd.vermont.gov/designated-agencies-da (last visited July 30, 2019).
[29] Olmstead v. L.C. by Zimring, 527 U.S. 581, 600-601 (1999).
[30] 84 Fed. Reg. at 27853, 27856-857. HHS partially bases its decision on a preliminary injunction in the federal court case Franciscan Alliance v. Azar, which prohibited HHS from enforcing the provisions of Section 1557 that ban discrimination based on the termination of pregnancy and gender identity. According to the Henry J. Kaiser Family Foundation, there has still been no final ruling upon the merits and the injunction nonetheless does not prevent private citizens from bringing suit alleging discrimination based upon these grounds. ASAN agrees with this interpretation of Franciscan Alliance. MaryBeth Musumeci, Jennifer Kates, Lindsey Dawson, Alina Salganicoff, Laurie Sobel, and Samantha Artiga, HHS’ Proposed Changes to Non-Discrimination Regulations Under ACA Section 1557, Kaiser Family Foundation (July 1, 2019), https://www.kff.org/disparities-policy/issue-brief/hhss-proposed-changes-to-non-discrimination-regulations-under-aca-section-1557/.
[31] 84 Fed. Reg. at 27853-857.
[32] See, e.g., Rumble v. Fairview Health Servs., No. 14–cv–2037, 2015 WL 1197415 (D. Minn. Mar. 16, 2015) (holding that discrimination against hospital patient based on his transgender status constitutes sex discrimination under Section 1557 of the Affordable Care Act); Flack v. Wis. Dep’t of Health Servs., No. 3:18-cv-00309-wmc (W.D. Wis. July 25, 2018) (holding that a Medicaid program’s refusal to cover treatments related to gender transition is “text-book discrimination based on sex” in violation of the Affordable Care Act and the Equal Protection Clause of the Constitution); Cruz v. Zucker, 195 F.Supp.3d 554 (S.D.N.Y. 2016) (holding exclusion invalid under the Medicaid Act and the Affordable Care Act); Prescott v. Rady Children’s Hosp.-San Diego, 265 F.Supp.3d 1090 (S.D. Cal. Sept. 27, 2017) (holding that discrimination against transgender patients violates the Affordable Care Act); Tovar v. Essentia Health, No. 16-cv-00100-DWF-LIB (D. Minn. September 20, 2018) (holding that Section 1557 of the Affordable Care Act prohibits discrimination on the basis of gender identity); Boyden v. Conlin, No. 17-cv-264-WMC, 2018 (W.D. Wis. September 18, 2018) (holding that a state employee health plan refusal to cover transition-related care constitutes sex discrimination in violation of Title VII, Section 1557 of the ACA, and the Equal Protection Clause).
[33] Katie Keith, HealthAffairs, HHS Proposes to Strip Gender Identity, Language Access Protections From ACA Anti-Discrimination Rule, Following the ACA (May 25, 2019), https://www.healthaffairs.org/do/10.1377/hblog20190525.831858/full/.
[34] The Circuit Courts that have ruled that federal sex discrimination laws protect people from discrimination on the basis of gender identity are the 1st, 6th, 7th, 9th, and 11th Circuit Courts. You can find out which states are under each Circuit Court here: https://www.uscourts.gov/about-federal-courts/federal-courts-public/court-website-links.
[35] 84 Fed. Reg. at 27853.
[36] See, e.g., 84 Fed. Reg. at27855, citing Evancho v. Pine-Richland School District, 237 F. Supp.3d 267, 299 (W.D. Pa. February 27, 2017). The court in Evancho did not resolve the question of whether gender identity was protected by Title IX, instead ruling that “is not in a position to conclude which party in this case has the
likelihood of success on the merits” on the Title IX claim. The decision in Evancho was based on a stay issued by the Supreme Court in Gloucester County School Board v. G.G., 136 S. Ct. 244 2 (2016), that has since been superseded. See 137 S. Ct. 1239 (2017) (vacating the Fourth Circuit’s judgment and remanding “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”). Despite the guidance document, on remand, the district court in G.G. once again held that gender identity discrimination violated Title IX. 302 F. Supp. 3d 730 (E.D. Va. 2018).
[37] 84 Fed Reg. at 27854-856.
[38] 84 Fed. Reg. at 27854-855 (explaining NIH’s goal of creating effective clinical interventions for the purposes of treating disease); 84 Fed. Reg. at 278654 (explaining ORR’s goal of protecting individuals from sexual harassment and domestic abuse).
[39] 84 Fed. Reg. at 27855.
[40] 81 Fed. Reg. 31376.
[41] 84 Fed. Reg. at 27849.
[42] 84 Fed. Reg. at 27893; 26 C.F.R. § 36.303 (definition of auxiliary aids and services in the implementing regulations for Title II of the Americans with Disabilities Act).
[43] 84 Fed. Reg. at 27867, 45 C.F.R. § 92.202(b).
[44] ADA National Network, Effective Communication, https://adata.org/factsheet/communication (last updated 2017); 42 U.SC. §§ 12181- 12182 (Title III of the ADA); 28 CFR § 35.160(b) (“… A public entity shall furnish appropriate auxiliary aids and services where necessary… ”).
[45] Statista, Distribution of U.S. medical practices by size in 2018, https://www.statista.com/statistics/415971/size-of-medical-practices-in-the-us/ (last visited Aug. 1, 2019).
[46] 84 Fed. Reg. at 27849.
[47] 81 Fed. Reg. at 31470.
[48] 84 Fed. Reg. at 27892.
[49] 84 Fed. Reg. at 27858-278560.
[50] 84 Fed. Reg. at 27862.
[51] 84 Fed. Reg. at 27862-863.
[52] See, e.g., 42 U.S.C. § 18001 (prohibition against discrimination based upon a pre-existing condition); 42 U.S.C 18113 (prohibition on discriminating against, explicitly, a “health insurance plan” among other “health care” entities, solely because they do not provide assisted suicide).
[53] See 42 U.S. Code § 18122; 42 U.S.C 18113.
[54] ASAN agrees with the opinions voiced by Sarah Rosenbaum on the subject in an article by The Commonwealth Fund and reiterates them with additions in the next three paragraphs of this comment. Sarah Rosenbaum, Rolling Back Civil Rights Protections in Health Insurance: The Proposed 1557 Rule, To the Point: Quick Takes on Healthcare Policy and Practice (June 12, 2019), https://www.commonwealthfund.org/blog/2019/rolling-back-civil-rights-protections-health-insurance-proposed-1557-rule.
[55] Sarah Rosenbaum, Rolling Back Civil Rights Protections in Health Insurance.
[56] Sarah Rosenbaum, Rolling Back Civil Rights Protections in Health Insurance; Urbans Institute & Brookings Institution, Tax Policy Center, Key Elements of the U.S. Tax System: What tax provisions subsidize the cost of health care? https://www.taxpolicycenter.org/briefing-book/what-tax-provisions-subsidize-cost-health-care (last visited Aug. 1, 2019).
[57] 84 Fed. Reg. at 27862.
[58] Sarah Rosenbaum, Rolling Back Civil Rights Protections in Health Insurance.
[59] Id.
[60] MaryBeth Musumeci, Jennifer Kates, Lindsey Dawson, Alina Salganicoff, Laurie Sobel, and Samantha Artiga, HHS’ Proposed Changes to Non-Discrimination Regulations Under ACA Section 1557.
[61] Id.