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Today, Congressman Jerrold Nadler (D-NY), Ranking Member of the House Judiciary Committee, Congresswoman Julia Brownley (D-CA), Congresswoman Diana DeGette (D-CO), and Congresswoman Barbara Lee (D-CA) spearheaded an effort by 127 House Democrats to call on Office of Management and Budget (OMB) Director Mick Mulvaney to uphold the Health Care Rights Law, also known as Section 1557 of the Affordable Care Act, which protects patients from discrimination in health care.
In April, the U.S. Department of Health and Human Service proposed rolling back the anti-discrimination rules, allowing healthcare providers to deny care and discriminate against patients. This proposal – currently being reviewed by OMB – will put individuals’ lives and health in danger and would be especially harmful to women and LGBTQ individuals, who are more often the victims of discrimination.
"No one should be denied health care because of who they are," said Congressman Nadler. "In passing the Affordable Care Act, Congress was clear: insurance companies and health care providers may not discriminate against women or members of the LGBTQ+ community. The dangerous proposed rule undermines those critical protections and puts millions of lives at risk. OMB must reject it."
“Patients’ health care needs should always come first,” said Congresswoman Brownley. “Rolling back the Health Care Rights Law would open the door for health care providers and insurance companies to deny individuals care based on their personal beliefs, which would threaten women and LGBTQ individuals across the nation. Discrimination has no place in health care, and the OMB must reject this harmful proposal immediately.”
“Discrimination is wrong,” said Congresswoman DeGette. “Discrimination in health care treatment is unconscionable. And rolling back anti-discrimination rules in order to let providers and insurers deprive people of health care is an affront to what our country stands for: equality under law.”
“Once again, this Administration is jeopardizing our most basic health care rights and putting the lives of the already vulnerable at further risk,” said Congresswoman Lee. “Make no mistake: this Health and Human Services proposal is a license for health care providers to discriminate against women and LGBTQ+ Americans. This proposal is not just hateful, it’s dangerous.”
The letter was signed by Reps. Jerrold Nadler, Julia Brownley, Diana DeGette, Barbara Lee, Seth Moulton, Al Green, Eleanor Holmes Norton, Gwen Moore, Nanette Barragán, Yvette D. Clarke, Lois Frankel, Niki Tsongas, Jan Schakowsky, Bill Foster, Earl Blumenauer, Adam B. Schiff, Jackie Speier, Kathy Castor, Grace F. Napolitano, Anna G. Eshoo, Elizabeth H. Esty, Joseph P. Kennedy III, Mark Pocan, Raúl M. Grijalva, Frederica S. Wilson, Peter A. DeFazio, José E. Serrano, John Garamendi, Sean Patrick Maloney, Ted W. Lieu, Paul Tonko, Chellie Pingree, Donald M. Payne Jr., Kurt Schrader, Ben Ray Luján, Debbie Dingell, Theodore E. Deutch, David N. Cicilline, Nydia M. Velazquez, Doris Matsui, Katherine Clark, Anthony G. Brown, Rosa L. DeLauro, Eliot L. Engel, Michelle Lujan Grisham, Lucille Roybal-Allard, Zoe Lofgren, Mark Takano, Keith Ellison, André Carson, Steve Cohen, Ruben Gallego, Scott H. Peters, Salud O. Carbajal, Lloyd Doggett, Jimmy Gomez, Peter Welch, Kathleen M. Rice, Alcee L. Hastings, Dina Titus, David E. Price, Alan Lowenthal, Suzanne Bonamici, Dan Kildee, Juan Vargas, Ruben J. Kihuen, Matt Cartwright, Eddie Bernice Johnson, John Yarmuth, Jerry McNerney, Mark DeSaulnier, Jamie Raskin, Raja Krishnamoorthi, Joseph Crowley, Betty McCollum, John Lewis, Brian Higgins, Pete Aguilar, Rick Larsen, Carol Shea-Porter, Pramila Jayapal, Charlie Crist, James P. McGovern, Ro Khanna, Jared Polis, Luis Gutiérrez, Bobby L. Rush, Mike Thompson, Alma S. Adams, Sander M. Levin, David Scott, Lisa Blunt Rochester, Judy Chu, John P. Sarbanes, William R. Keating, Debbie Wasserman Schultz, Linda T. Sánchez, Raul Ruiz M.D., Joe Courtney, Michael E. Capuano, Suzan K. DelBene, Jared Huffman, Ami Bera, M.D., Adriano Espaillat, Tulsi Gabbard, Marcia L. Fudge, Gerald E. Connolly, Al Lawson, Carolyn Maloney, Colleen Hanabusa, Val Demings, Donald S. Beyer Jr., Marcy Kaptur, Brad Sherman, Robin L. Kelly, Gene Green, Bonnie Watson Coleman, Terri A. Sewell, Darren Soto, Marc Veasey, Adam Smith, Norma J. Torres, Mike Quigley, Karen Bass, Beto O’Rourke, J. Luis Correa, and Bobby Scott.
The full text of the letter is available here and below.
May 23, 2018
The Honorable Mick Mulvaney
Director
Office of Management and Budget
725 17th Street, NW
Washington, DC 20503
Dear Director Mulvaney:
On Friday, April 17th, the Office of Management and Budget (OMB) indicated that it is reviewing a proposed rule, titled “Nondiscrimination in Health Programs or Activities.” Given the Trump-Pence Administration’s record on women’s health and rights, and in light of recent actions specifically related to the Affordable Care Act’s (ACA) Health Care Rights Law or Section 1557 of the ACA, OMB’s review of this proposal signals that the Trump-Pence Administration intends to roll back the first broad prohibition of sex discrimination in federal law. We urge you to reject a proposed rule that undermines these important protections.
The Department of Health and Human Services’ (HHS) recent actions in regard to the Health Care Rights Law’s prohibition on sex discrimination raise serious concerns about the agency’s intent. Specifically, in Franciscan Alliance v. Azar, HHS refused to defend its final regulation interpreting and implementing the law’s sex discrimination prohibition.1 Moreover, HHS has removed language regarding sex stereotyping, gender identity and sexual orientation from the “Frequently Asked Questions” section of the HHS webpage about the Health Care Rights Law.2 This strongly suggests that HHS plans to weaken these critical protections.
In drafting and enacting the Health Care Rights Law, members of the 111th Congress, including many of the signatories of this letter, clearly and unambiguously intended the Health Care Rights Law to prohibit sex discrimination in health care, including on the basis of termination of pregnancy, gender identity, and sexual orientation. Yet, even after passage of the statute, some health programs have continued to discriminate based on sex, leading to serious disparities in health care access and health insurance coverage. Some insurance companies, for example, continue to deny women comprehensive insurance coverage by barring insurance coverage of maternity care for an employee’s dependents.3 Shamefully, women have been sexually assaulted or harassed by health care providers.4 And further, people who are transgender also continue to experience discrimination when they try to access the most basic health services. One-third of transgender respondents in a 2015 survey reported that they “had at least one negative experience related to being transgender” when dealing with health providers in the past year.5 Eight percent of lesbian, gay, bisexual, and queer people report that a doctor or other health care provider refused to see them.6 The Health Care Rights Law protects people against these and other forms of discrimination. Crucially, it provides protections against discrimination based on one or a combination of prohibited reasons. For example, the Health Care Rights Law would protect a transgender individual who is denied care because of their HIV status or because English is not their first language.
In light of the Administration’s recent policy changes intended to make it easier for health care providers –including insurance companies, hospitals, and doctors – to deny people health care because of the provider’s personal beliefs, we remain extremely concerned that the proposed rule may create a religious exemption to the Health Care Rights Law.7 Adding any type of religious exemption, or enforcing the Health Care Rights Law in a way that allows for a religious exemption, is antithetical to the purpose and language of the Health Care Rights Law and would undermine Congress’s lawmaking authority. The statute contains only one exception, “except otherwise provided” in Title I of the ACA.8 This plain language unambiguously bars application of any other exception. Allowing for a religious exemption would be an inappropriate administrative rewriting of unambiguous statutory language. As a former Member of Congress, and a staunch opponent of executive overreach in the last administration, we know you understand this concern. The Constitution is clear: only Congress, a democratically elected lawmaking body, may write the laws.
We urge you to abandon any proposal that would erode the Health Care Rights Law’s important protection, undermine Congress’ sole lawmaking authority, and allow health care providers to discriminate against their patients.
Sincerely,
1. 2016 WL 7638311, No. 7:16-cv-00108 (N.D. Tex. Dec. 31, 2016).
2. Section 1557: Frequently Asked Question, DEP’T OF HEALTH AND HUMAN SERVS. (2018), https://www.hhs.gov/civil-rights/for-individuals/section-1557/1557faqs/index.html.
3. NAT’L WOMEN’S LAW CENTER, Press Release, Victory in Sex Discrimination Complaints Brought by NWLC: After Investigation by HHS, Employers Change Policies (Jan. 26, 2017), https://nwlc.org/press-releases/victory-in-sex-discrimination-complaints-brought-by-nwlc-after-investigation-by-hhs-employers-change-policies/.
4. Jess Horwitz and Juliet Linderman, AP Investigation: #MeToo Has Little Impact on Medical World, N.Y. TIMES (Apr. 16, 2018), https://www.nytimes.com/aponline/2018/04/16/us/politics/ap-us-sexual-misconduct-doctors.html.
5. Sandy E. James et al., NAT’L CTR. FOR TRANSGENDER EQUALITY, The Report of the 2015 U.S. Transgender Survey (Dec. 2016) at 9, available at http://www.transequality.org/sites/default/files/docs/usts/USTS%20Full%20Report%20-%20FINAL%201.6.17.pdf.
6. Shabab Ahmed Mirza & Caitlin Rooney, Discrimination Prevents LGBTQ People from Accessing Health Care, CTR. FOR AM. PROGRESS (Jan. 18, 2018), https://www.americanprogress.org/issues/lgbt/news/2018/01/18/445130/discrimination-prevents-lgbtq-people-accessing-health-care.
7. See, e.g., Exec. Order No. 13, 798, 82 Fed. Reg. 21,675 (May 4, 2017), Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 83 Fed. Reg. 3880 (proposed Jan. 26, 2018) (to be codified at 45 C.F.R. pt. 88)
8. 42 U.S.C. § 18116(a).
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