Everyone should have the right to be treated with respect by their health care providers, receive treatment that fits their needs, and get information in a language they can understand. Older adults, particularly people of color, immigrants, people with limited English proficiency (LEP), people with disabilities, and LGBTQ+ older adults, often face discrimination in health care settings that leads to poorer health outcomes. For example, 1 in 5 transgender older adults report being refused health care because of their gender identity. Nearly a third of older adults report frequently experiencing age discrimination from doctors or hospitals. LGBTQ+ and older adults of color living in nursing facilities often experience discrimination and receive poorer-quality care due to overt and structural racism, sexism, ageism, ableism, homophobia, transphobia, and xenophobia.
The Health Care Rights Law (HCRL), also known as Section 1557 of the Affordable Care Act, is a landmark federal law that prohibits discrimination in health care. It is the only federal law that bans discrimination on the basis of race, color, national origin, sex, age, and disability specifically in health programs and activities that receive federal financial assistance.
The HCRL regulations issued by the Department of Health and Human Services (HHS) under President Obama in 2016 clarified the broad scope of protections under Section 1557. However, in 2020, the Trump Administration finalized a new rule that restricted many of these protections. For example, the 2020 rule eliminated notice of rights and include in-language tagline requirements. It also eliminated important anti-discrimination protections for LGBTQ+ people, limited the scope of healthcare entities subject to the rule and made it much harder to challenge certain types of discrimination in court.
Several lawsuits were filed challenging the Trump Administration’s changes to the regulations, and courts have issued orders prohibiting HHS from implementing certain aspects of the 2020 rule. However, other changes to the rule such as the elimination of notice and language access protections, went into effect on August 18, 2020. In response, Justice in Aging filed a lawsuit challenging the elimination of the notice and tagline requirements, which is currently stayed pending new rulemaking.
The Biden Administration is expected to issue a new proposed rule that will restore many of the provisions that the 2020 rule eliminated. During the proposed rule stage, called a notice of proposed rulemaking (NPRM), the public will have the opportunity to provide written feedback on the changes HHS is proposing, as well as recommend additional changes. Justice in Aging will provide updates and resources for aging advocates to engage in the rulemaking process.
Q & A on the 2020 Rule: Changes to the Rules Implementing the Health Care Rights Law, August, 2020
Justice in Aging and the Center for Medicare Advocacy, along with pro bono firm Stinson LLP, filed a lawsuit against the Department of Health and Human Services (HHS) in U.S. District Court for the District of Columbia on behalf of Chinatown Service Center and St Barnabas Senior Services community-based organizations that provide social services to LEP older adults. The lawsuit challenges the elimination of the notice and tagline requirements in the 2020 final rule.