In the midst of the COVID-19 pandemic where racial and ethnic disparities in health care have been highlighted, the Trump Administration’s U.S. Department of Health and Human Services Office of Civil Rights has finalized a regulation that would severely weaken the protections against discrimination in health care that the office is intended to enforce. The final rule announced today amends a 2016 regulation issued by the Obama Administration to implement the updated and broadened protections against discrimination enacted as part of the 2010 Affordable Care Act, known as Section 1557.
The changes in this final regulation would roll back protections based on gender identity, which had protected transgender Americans from being denied medically necessary health care services, and for women who have had or may need abortion services or other reproductive health care. The final regulation also significantly weakens the requirements for health plans and other recipients of federal funding to notify individuals of their right to health care interpreters, translated materials, and other language access services. Without such notices in their own languages, individuals who speak or read languages other than English, will not know about this important protection against discrimination, making it much less meaningful.
Instead of acknowledging the adverse impact of discrimination and exclusion from health care on millions of Americans that will result from the weakening of these protections, the Office of Civil Rights touts the reductions in administrative burdens and costs to the health care industry as the rationale for the changes. Throughout the final regulation, the Office of Civil Rights repeatedly expresses concerns about the burdens on the health plans, hospitals, and providers it is supposed to be monitoring for discrimination (only citing “evidence” submitted by those very entities it is supposed to oversee) , rather than about the impact of discrimination on the Americans whose “civil rights” it is supposed to protect.
The Office of Civil Rights also noted that this change is consistent with the Trump Administration’s transphobic definition of “sex” as only meaning “male or female and as determined by biology”, a narrow definition that it has sought to apply in educational and employment contexts as well. The stripping of protections for women who have used or need abortion services and other reproductive health care continues the Administration’s absolutist and punitive restrictions on abortion and reproductive health care. And the weakening of language access requirements is consistent with the Administration’s relentless scapegoating and policies targeting immigrants and refugees, from the Muslim ban in the first days of the Administration to the most recent suspension of almost all immigration under the pretext of protecting the economy recovering from COVID-19.
The final rule will be officially published in the Federal Register next Friday June 19, and then will become effective sixty days after that date, in mid-August.
In a bit of irony, the Office of Civil Rights has made an executive summary of this final regulation weakening the language access requirements available in Spanish, Chinese, Vietnamese, Korean, and Tagalog; essentially providing in-language notices that such in-language notices would no longer be required.
Ignatius Bau 