This week Volunteers of Legal Service (VOLS), with the assistance of Kramer Levin Naftalis & Frankel LLP, submitted a public comment opposing the adoption a proposed rule* by the United States Department of Health and Human Services (HHS) gutting many of the civil rights protections found in the Affordable Care Act and would make healthcare less accessible for both LGBT and limited English proficient patients and will make discrimination they may face in heath care settings harder to remedy.
Under the proposed rule, specific nondiscrimination protections based on sex, gender identity, and association would be eliminated; many of the law’s language access requirements would be rolled back; and it would also curtail various enforcement-related provisions of the law.
VOLS opposes the adoption of the proposed HHS rules because it would worsen health outcomes for many seniors. Under the rule:
- fewer LGBT seniors will be comfortable accessing much needed medical care;
- limited English proficient seniors will not be provided with adequate language access when seeking medical care;
- and when patients face discrimination, they will not have suitable means to address their complaints.
The proposed rule seeks to remove protections against discrimination on the basis of sexual orientation and gender identity from regulations enacted under Section 1557 of the Affordable Care Act. We strongly believe that this will cause LGBT seniors to forgo much needed medical care.
The VOLS Elderly Project recently represented a transgender woman, who sought to legally change her name to her chosen, female name from the male name given to her at birth. In the interview process, the client indicated that she wanted to avoid uncomfortable situations where the use of her birth name “outed” her as transgender. An example she gave was medical staff in doctors’ offices calling out her birth name rather than her chosen name, leading others in the waiting room to stare and snicker at her. While this is by no means an extreme example of discrimination, as transgender individuals face a disproportionate risk of violence and harassment, it illustrates the indignities that transgender people suffer every day.
Medical offices should train their staff to be sensitive to LGBT patients, so seeking medical assistance is not a traumatic experience for LGBT individuals. Protecting against discrimination on the basis of sexual orientation and gender identity in the healthcare context is especially important as a societal matter. LGBT older people are statistically more financially insecure than similarly situated non-LGBT people. If patients fear mistreatment or embarrassment in the context of preventative care, they will stop seeking it out and instead rely on far more expensive emergency and chronic care.
HHS also seeks to roll back provisions that protect individuals with limited English proficiency, meaning those who speak little to no English. There are approximately 860,000 immigrants over the age of sixty residing in New York City – a staggering 57% of the city’s population in that age group. About half of New York City residents over sixty use a language other than English as their primary language. Finally, there are more than 400,000 New York City residents over the age of sixty who speak English less than very well and may not be able to adequately communicate in English in a healthcare setting. This substantial population of New Yorkers will face additional hurdles in obtaining medical assistance if the proposed rule is adopted.
The risks for older adults who are unable to access health care due to language or other barriers are great because most people’s health care needs increase and become more complicated as they age. Health care information is complex and can only be communicated effectively in an individual’s primary language. The added costs that the current regulations add to health care providers are clearly outweighed by the benefit provided to limited English proficient patients.
Because it harms the clients and the communities we serve, our comments strongly urges HHS to withdraw this notice of proposed rulemaking in its entirety.
Click here to download the full VOLS public comment (PDF).
* The public comment by VOLS is in response to Federal Register No. 2019-11512; HHS Docket No. HHS-OCR-2019-0007-0001
RIN 0945-AA11; Nondiscrimination in Health and Health Education Programs or Activities