Proposed Changes in Healthcare Nondiscrimination Protections Hurt Floridians

On June 14, 2019, the U.S. Department of Health and Human Services officially published proposed changes to the nondiscrimination regulations under Section 1557 of the Affordable Care Act (ACA).1 The announcement triggered a 60-day public comment period. Section 1557, the nondiscrimination provision of the ACA, expands long-standing federal civil rights protections to certain healthcare programs and activities. The proposed rule changes will negatively impact multiple at-risk populations. Among other revisions, the changes would:

• Exempt most health insurance companies from nondiscrimination language
• Allow hospitals and providers to deny care based on religious beliefs
• Eliminate references to “sexual orientation” and “gender identity” as well as “sex stereotyping” virtually erasing LGBT protection
• Undo protections for HIV positive individuals that resulted from a complaint originating over HIV drug price inflation in Florida
• Remove the requirement for informing limited English proficiency (LEP) individuals of the availability of language assistance services

Potential Impact
Health care policy professionals, providers, and advocates are weighing in on how these changes negatively impact women’s reproductive healthcare access, as well as healthcare access for the LGBT, HIV+, and LEP populations. Raising the stakes for Florida, the state ranks 3rd for size of Medicaid population,6 10th for highest LGBT population percentage7 and 3rd highest for HIV infection rate in the United States.8 Additionally, Florida’s LEP population ranks 4th largest in the country with 2.1 million individuals.

Florida Health Justice Project (FHJP) Next Steps
Alongside national, state and local partners, FHJP will be submitting official comments to the Department of Health of Human Services detailing the potential negative impact of the proposed changes on Floridians and discouraging implementation. In the coming days, FHJP will be gathering data and conducting research to inform our comments and conclusion. In addition, FHJP will share our research with other interested entities and encourage our partners to formally submit comments as well. Please contact Timothy Loftus, M.D., FHJP Law Clerk, at tloftus@law.miami.edu for questions.

1. Centers for Medicare and Medicaid Services, U.S. Department of Health and Human Services. (June 2019). Nondiscrimination in Health and Health Education Programs or Activities. Retrieved from https://www.federalregister.gov/documents/2019/06/14/2019-11512/nondiscrimination-in-health-and-health-education-programs-or-activities. 14 June 2019.
2. Henry J. Kaiser Family Foundation. (June 2019). Summary of HHS’s Final Rule on Nondiscrimination in Health Programs and Activities. Retrieved from https://www.kff.org/disparities-policy/issue-brief/summary-of-hhss-final-rule-on-nondiscrimination-in-health-programs-and-activities/. 20 June 2019.
3. Justice in Aging. (May 2019). Justice in Aging’s Statement on Trump Administration’s Proposed Roll-back of Health Care Rights. Retrieved from https://www.justiceinaging.org/justice-in-agings-statement-on-trump-administrations-proposed-roll-back-of-health-care-rights/. 20 June 2019.
4. National Health Law Program. (May 2019). Administration Announces Proposed Regulation Change to Subvert ACA’s Civil Rights Protections. Retrieved from https://healthlaw.org/news/administration-announces-proposed-regulation-change-to-subvert-acas-civil-rights-protections/. 20 June 2019.
5. American Medical Association. (May 2019). AMA Advocacy Update. Retrieved from https://assets.ama-assn.org/sub/advocacy-update/2019-05-31.html. 20 June 2019.
6. Centers for Medicare and Medicaid Services, U.S. Department of Health and Human Services. (June 2019). March 2019 Medicaid and CHIP Enrollment Data Highlights. Retrieved from https://www.medicaid.gov/medicaid/program-information/medicaid-and-chip-enrollment-data/report-highlights/index.html. 17 June 2019.
7. LGBT Demographic Data Interactive. (2019). Los Angeles, CA: The Williams Institute, UCLA School of Law. Retrieved from https://williamsinstitute.law.ucla.edu/lgbtstats/. 17 June 2019.
8. Centers for Disease Control and Prevention. HIV Surveillance Report, 2017; vol. 29. http://www.cdc.gov/hiv/library/reports/hiv-surveillance.html. Published November 2018. Retrieved 17 June 2019.
9. Migration Policy Institute. (July 2015). The Limited English Proficient Population in the United States. Retrieved from https://www.migrationpolicy.org/article/limited-english-proficient-population-united-states. 20 June 2019.