Michigan Attorney General Dana Nessel joined a coalition of 23 attorneys general, led by California, New York, and Massachusetts, in a comment letter supporting the U.S. Department of Health and Human Services’ (HHS) proposed rule strengthening anti-discrimination protections under the Affordable Care Act (ACA). The proposed rule would implement Section 1557 of the ACA, which prohibits discrimination in federal healthcare programs, benefits, and services, and strengthens protections for women, LGBTQ+ individuals, people with limited English proficiency, and those with disabilities.
“Our health care laws should be free of discriminatory practices,” Nessel said. “Rolling back the anti-discriminatory provisions of the ACA was bad for the millions of people of every walk of life who depend on this important legislation to meet their healthcare needs. I applaud HHS for this new rulemaking to reinstate what was so unjustly removed and I happily stand with my colleagues in supporting the strengthening of these vital protections.”
The new rule is critical to safeguarding the health and well-being of communities of color, people with pregnancy-related conditions, LGBTQ+ individuals, people with limited English proficiency, and those with disabilities. Creating an equitable, accessible, and affordable healthcare system is a continuing priority for states across the country, and the proposed rule is an important step in that direction.
When Congress enacted the ACA in 2010 under the Obama Administration, it contained a landmark civil rights provision, Section 1557, implemented in 2016, which prohibits discrimination in federal healthcare programs, benefits, and services. Specifically, Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability.
But this provision was undermined significantly in 2020, when, under the Trump Administration, HHS finalized a rule rolling back those protections, effectively sanctioning discrimination in the healthcare system. Now, under the Biden Administration, HHS has issued a notice inviting comments on a proposed revision that would restore comprehensive anti-discrimination protections to the ACA.
In their letter responding to HHS’ notice, the attorneys general assert their support for the proposed rule because, among other reasons, ensuring that a broader swath of entities refrain from discrimination in the healthcare system will reduce adverse health outcomes, the costs of which would otherwise be borne by the states’ public health systems. In addition, limiting the scope of Section 1557, as the 2020 rule sought to do, increases the burden on the states to monitor and enforce nondiscrimination laws.
The coalition applauds the rule for preserving and broadening the following protections:
• Prohibition against sex discrimination based on gender identity, including against transgender people.
• Establishment of detailed language access requirements to ensure people of all national origins, including those with limited English proficiency, have meaningful access to health programs and activities.
• Prohibition against discrimination on the basis of pregnancy-related medical conditions such as past pregnancy and the termination of pregnancy.
• Recognition that the prohibition on discrimination in healthcare encompasses algorithms, like clinical decision-making tools.
In filing the comment letter, Nessel joins the attorneys general of California, New York, Massachusetts, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.
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