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.