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The old adage “April showers brings May flowers” does not seem to hold true this spring as we witness a pickup in stormy weather emanating from Washington. Over the past couple of weeks, a flurry of activity from both CMS and DOJ raises concerns about the administration’s efforts to restrict consumers’ access to health coverage and support services. The following is a round-up of the Trump administration’s efforts to thwart the intent and implementation of the Affordable Care Act, restrict access to high quality, equitable care and bar immigrant populations’ access to safety net services and supports. Since the midterm elections shifted the House majority to Democrat, the administration has increasingly used tools outside of the congressional process — including the courts, the rule making process and the bully pulpit (as the 2020 campaign season begins) — to advance their agenda.
Texas v. U.S. – ONGOING
In March, the Trump administration altered its position on Texas v. U.S., arguing that the entire Affordable Care Act (ACA) should be struck down. The Department of Justice (DOJ) and plaintiffs filed briefs on May 1 in the Fifth Circuit Court of Appeals. In their shift, DOJ now fully supports the plaintiffs’ arguments and the lower court’s decision in striking down the law. This administration’s extreme position places millions of people at risk of losing their health coverage and their pre-existing condition protections. Oral arguments are scheduled for July 8. Read our statement here.
Religious Refusal Rule – FINAL
Just last week, the administration finalized a rule that will make it easier for health providers to use their personal religious or moral beliefs to deny people care. In addition to individual providers and health care workers, the rule allows hospitals, pharmacies and clinics, to refuse to deliver any health care services to which they have personal or institutional objections. The final rule consolidates the authority of the Office of Civil Rights (OCR) within Health and Human Services (HHS) to enforce a range of religious and moral exemption provisions and terminate federal funding in full or in part. This dangerous rule risks the coverage of many people, with women and LGBTQ people particularly at risk of being denied medically-appropriate treatment. See our statement here.
Health Care Rights Rule (ACA Section 1557) – PROPOSED TBD
The Health Care Rights Rule or section 1557 is the Affordable Care Act (ACA)’s antidiscrimination provision that prohibits health programs and institutions that receive federal funding from discrimination on the basis of race, color, national origin, age, disability, or sex. The administration challenged the provision in court (Franciscan Alliance v. Azar) previewing their position and desire to roll back protections based on an interpretation of sex discrimination as including discrimination based on gender identity, sex stereotyping or termination of pregnancy. Stakeholders anticipate that the proposed rule will align with the religious refusal final rule, risking the health of many people including women and LGBTQ people. Stay tuned!
Basic Health Plan Funding Methodology Rule – PROPOSED
The Basic Health Plan (BHP) provides states an option for providing affordable health coverage for people below 200 percent of the federal poverty level. While only two states have adopted this option to date, estimates show that more than 800,000 people will benefit from BHP in 2019 and 2020. The proposed change to the BHP funding methodology will reduce federal investment in this important program by an estimated $300 million. Once again, the administration is using the administrative process to limit access to health coverage, affecting low-income consumers, disproportionally people of color. Read our comments here.
Late on Friday last week, media reported that the Department of Justice (DOJ) is drafting proposed rule to expand their ability to deport legally residing immigrants who use public benefits. This comes on the heels of rumors that the Department of Homeland Security (DHS) will release a final public charge rule “soon.” As a reminder, the DHS final rule is expected to broaden the definition of public charge to include a spectrum of public benefits including Medicaid, food stamps, housing vouchers and cash assistance. Together, these two rules highlight ongoing attacks on immigrant populations by this administration and a multi-pronged strategy to limit access to needed services, vilify immigrants’ use of public benefits and, most extreme, deport people.
First, advocates can prioritize strategies and tactics that highlight the negative effects of losing the Affordable Care Act (ACA), most notably the ACA’s protections for people with pre-existing conditions. We encourage advocates to take action and plan earned media activities surrounding the July oral arguments. This peak is important in highlighting the administration’s war on the ACA and setting the political stage for 2020. Look for a toolkit from Community Catalyst to get started.
Second, advocates should, to the best of their ability, help drive comments into agencies, lifting up consumer stories. There are coalitions to ease this work such as the Protecting Immigrant Families (PIF), which is leading the fight against changes to public charge. We encourage advocates to spread the word to their networks and flood the comment portals. We all know that comments make a difference – if not now, then later. While early May often brings more light and fewer storms, we are not yet out of the dark and should remain on alert and prepared to fight back.