Guest Blogger: Hannah Zuberman-Leibman, MPH, summer intern with Community Catalyst’s Women’s Health Program

More than 36,000 comments have been submitted so far opposing a proposed Trump administration rule designed to undermine the Affordable Care Act’s landmark non-discrimination provisions. That’s great news, but our work is far from over!

As health care advocates, we need to generate as many unique individual comments as possible explaining how discrimination hurts vulnerable patients and should not be sanctioned by the proposed rule. The deadline to submit unique and personalized comments is August 13. We’ve made it easy for individuals to do this by creating a dedicated web page that explains what’s at stake and provides direct links to comment pages set up by some of our allies. You can also find some great social media graphics you can use to encourage your friends, family and colleagues to submit comments of their own.

Who would be hurt by the proposed rule?

The proposed rule would affect enforcement of Section 1557 of the ACA, also known as the Health Care Rights Law (HCRL). It would reverse portions of rules that the Obama administration had issued interpreting Section 1557’s landmark prohibitions on sex discrimination. The Obama-era rule had defined prohibited sex discrimination under Section 1557 to include discrimination based on an individual’s gender identity, a departure from traditional sex stereotypes or use of abortion services.

While not actually repealing this section of the ACA – only Congress can do that – the proposed Trump administration rule would make it more difficult for people who have experienced health care discrimination to file complaints and seek redress. It is critical that the complaints process is preserved because it allows patients to seek redress without the costs and time associated with litigation. The current complaints process has been effective in resolving issues of anti-LGBTQ discrimination, according to an analysis by the Center for American Progress.  

The proposed rule also would send the wrong message to health care providers, who could believe they have been given a green light to discriminate. There would be a disproportionate impact on transgender people who already face alarming rates of discrimination in the health care system and significant barriers to gender-affirming care.   

Especially harmed would be:

  • Transgender and gender-nonconforming people, who already experience significant obstacles to obtaining needed health care. Patients could experience improper or hostile treatment, misgendering and improper hospital room assignments that deny a person’s chosen gender identity. Medical providers could believe they have the go-ahead to deny gender-affirming care.
  • LGBTQ+ people who do not conform to traditional sex stereotypes could also face renewed or intensified discrimination. The prohibition on sex stereotyping discrimination indirectly prohibits bias based on an individual’s sexual orientation.
  • People who need abortion services or have had abortions in the past. Health providers could deny abortion care, or even medically appropriate treatment for miscarriages.
  • People with limited English proficiency who need language access services. The proposed Trump rule would eliminate some of the existing requirements for ensuring language access for people whose first language is not English, making it more challenging for them to receive appropriate medical care.
  • People with HIV or AIDS and others with chronic illnesses.  The proposed rule would remove the current Section 1557 rule language prohibiting discriminatory plan benefit and design. An example of this type of discrimination is how insurers have tried to dissuade people with HIV or AIDS from enrolling in their plans by placing all or most needed drugs on the highest cost-sharing tiers. Health policy experts point out that such discriminatory practices are prohibited by other laws and regulations, but there is concern that the proposed 1557 rule would make it harder for people to file complaints.

Why does it matter that we submit comments?

Before the proposed rule is issued as a final rule, the U.S. Department of Health and Human Services (HHS) is required to seek comments from the public. Will it make a difference if you submit comments? Yes!

HHS is required to consider all comments received, and respond to them – either by making the requested changes in the rule or explaining why the change was rejected. When thousands of comments are received, it sends a strong public message that this kind of discrimination is unacceptable. Moreover, if HHS ignores substantive comments that have been submitted, that could enable advocacy groups to file lawsuits challenging the final rule, should it be formally implemented.

It is extremely important, however, that individuals submit comments that are uniquely theirs. It’s fine to work from suggested language or a template, but commenters can have the greatest influence in the process by including personal examples from their own life experience about how health care discrimination harms patients.

We need thousands of us to tell the Trump administration to #PutPatientsFirst!