Letter to the Honorable Sylvia Mathews Burwell, Secretary of the Department of Health and Human Services - On the Urgent Implementation of Anti-Discrimination Protections

Letter

Dear Secretary Burwell:

The ACA significantly improved and strengthened access to affordable health care by, among other efforts, prohibiting insurance companies from discriminating based on pre-existing conditions. Despite this progress, studies have shown that gaps in health care access remain, and insurers continue to employ discriminatory practices to discourage individuals with significant health needs from enrolling in their plans.

Discrimination in our health care system is harming, and costing, lives in communities across the country -- and that is unacceptable. We write to you regarding the Department of Health and Human Services' (the Department) proposed rule implementing Section 1557 of the Affordable Care Act (ACA). Section 1557, the civil rights provision of the ACA, protects all Americans from discrimination in access to health care. We commend the Department's Office of Civil Rights for issuing proposed regulations implementing much of this provision, and we urge the Department to clarify the final rule's protections against discrimination to ensure that the regulations provide the necessary enforcement tools. Section 1557's important protections must be fully implemented and vigorously enforced.

Too often in the Marketplace, insurers are able to actively discourage people from enrolling in and accessing health care by denying costly but proven services, restricting necessary treatments through adverse drug tiering and prior authorization requirements, placing limitations on access through plan design and through narrow networks that restrict certain types of specialists in a discriminatory manner. For example, a recent paper in the New England Journal of Medicine indicated that some insurers are employing the practice of adverse tiering -- such as placing medications used to treat HIV in the highest cost-sharing tiers. This practice creates prohibitive out-of-pocket costs to beneficiaries. These practices can effectively block access to health care services for racial and ethnic groups, women, the LGBT community, people with disabilities, and individuals with chronic illnesses. The final regulation should explicitly prohibit such practices and specify how federal and state agencies will ensure compliance and enforcement of this section as Congress intended and include examples of unacceptable discriminatory practices.

In addition to addressing issues with the discriminatory benefit and network design, we encourage the Department to address discriminatory barriers to health care access by clarifying the following protections afforded under this rule:

Racial and Ethnic Discrimination: According to the Department's Agency for Healthcare Research and Quality, minority populations face a number of barriers in accessing health care. Health disparities continue to pose significant challenges to achieving true health equity in America. A study published by the Journal of the American Medical Association Internal Medicine, for instance, found that specific racial and ethnic groups, including Black and Hispanic Americans, experience longer wait times for care than do white Americans. Other studies have also highlighted continued racial discrimination in treatments and rates of medical procedures across diseases, institutions, and provider types. We urge the Department to further address and delineate how racial and ethnic discrimination impacts access and quality of care.

Religious Exemption: We are disappointed that the Department is considering whether or not the final rule would have a religious exemption. Such an exemption would undermine the vital protections against discrimination intended by Congress, threatening harm to individuals, including the outright denial of critical services to women and the LGBT community. We urge the Department to reject such an exemption in the final rule.

Gender: The proposed rule would not apply to employment discrimination by a health program or activity except for discrimination in some employee health benefit programs. Section 1557 prohibits all "discrimination" under any covered health program or activity. To carve out employment discrimination by health programs and activities would contradict the provision. Further, the proposed rule sets out core sex discrimination prohibitions by incorporating certain implementing regulations for Title IX of the Education Amendments of 1972. Section 1557 is drafted similar to Title IX and Section 504 of the Rehabilitation Act of 1973, without an employment discrimination exemption, and should be interpreted to reach employment discrimination just as those laws have. There is a particular need for this protection given the discrimination that female health care providers continue to face. We urge the Department to delineate stronger protections under the rule and provide examples to ensure compliance.

Disability: The proposed rule notes that discrimination in health care may contribute to poor health outcomes, disparities, and inadequate distribution of care resources, however, we are deeply concerned that insurers are discouraging people with disabilities from accessing care through discriminatory benefit design, payment structures, network design, coverage decisions, and other means. We urge the Department to further describe these types of impermissible forms of disability discrimination and outline how federal and state agencies will monitor and enforce compliance with Section 1557. We are further concerned that benefit design, payment structures, network designs, and coverage decisions could result in people with disabilities being served in needlessly segregated settings. In finalizing this rule, we urge the Department to make clear in the text of the final rule that policies that promote needless segregation of individuals with disabilities, which is contrary to the Americans with Disabilities Act, is a form of discrimination.

Sexual Orientation: We appreciate the Department's explicit inclusion of gender identity and sex stereotyping as protected characteristics in this proposed rule. Including these clear protections will be a powerful tool in combating discrimination against transgender and gender non­conforming people. However, we are disappointed the Department neglected to include similarly explicit protections regarding sexual orientation. Clarifying that sexual orientation is also protected under Section 1557 is essential to ensuring that all individuals and families have access to the health care they need and deserve without fearing discrimination.

We appreciate the Department's efforts in taking this important step of issuing a proposed rule relating to Section 1557. As you finalize this regulation, we request that the Department consider the recommendations outlined in this letter to help prevent and remediate discrimination in healthcare as Congress intended.

Thank you for your attention to this important matter.

Sincerely,

United States Senator Sherrod Brown

United States Senator Patty Murray

United States Senator Patrick J. Leahy

United States Senator Richard J. Durbin

United States Senator Elizabeth A. Warren

United States Senator Richard Blumenthal

United States Senator Edward J. Markey

United States Senator Michael F. Bennet

United States Senator Sheldon Whitehouse

United States Senator Barbara Boxer

United States Senator Tammy Baldwin

United States Senator Cory A. Booker

United States Senator Al Franken

United States Senator Bernard Sanders

United States Senator Jeff A. Merkley

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