The Trump administration is proposing to undermine strong and clear protections against discrimination in health care by giving health care providers, pharmacy benefit managers, and insurers a license to discriminate against LGBTQ people and many others. The existing rule implementing Section 1557 of the Affordable Care Act (ACA), also known as the Health Care Rights Law, was promulgated by the Obama administration in 2016 after a rigorous six-year process. The rule characterized discrimination based on sex stereotyping and gender identity as impermissible sex discrimination under the law. It also prohibited insurance providers using the marketplace from discriminating against protected characteristics, provided strong language access and notice requirements, and established many other critical patient protections.
The Trump administration incorrectly claimed that an injunction against limited provisions of the rule necessitated promulgating a new rule, but the proposal’s expansive decimation of existing protections reveals that this is just the administration’s latest effort to undermine the ACA at the cost of patient care. In addition to erasing the existing regulation’s explicit protections for LGBTQ people, the proposed rule would also:
- Erase sexual orientation and gender identity protections in 10 other regulations unrelated to the Health Care Rights Law, including prohibitions on discriminating against people because of their sexual orientation in Programs of All-Inclusive Care for the Elderly
- Weaken language access protections, harming the ability of patients with limited English proficiency (LEP) to understand information about their medical care and coverage
- Eliminate all requirements to notify patients of their rights and grievance procedures
- Add broad religious exemptions for health care providers and insurers, permitting providers to discriminate based on sex
- Allow insurers to employ marketing practices or benefit designs to discourage people with HIV from enrolling in certain health plans, which could potentially force these individuals to buy more expensive plans
- Drastically limit the entities covered under the nondiscrimination protections
While the proposed rule would impede access to care for many groups, two constituencies stand to gain from it: insurance companies and pharmacy benefit managers. The U.S. Department of Health and Human Services’ (HHS) cost-benefit analysis attempts to justify the enormous harm that the proposed rule’s rollback of critical nondiscrimination protections would cause by framing the removal of these protections for people with LEP as a savings for insurance companies and pharmacy benefit managers.