By Didier Trinh, Diverse Elders Coalition’s Advocacy Director.

Under the Obama Administration, the original text of Section 1557 of the Affordable Care Act (also known as the Health Care Rights Law, or HCRL) was interpreted to protect individuals from discrimination in healthcare settings. However, under the Trump administration, many of these protections that prohibited discrimination in healthcare on the basis of race, color, national origin, sex, age, and disability were rolled back. 

In close partnership with Justice in Aging, the Diverse Elders Coalition (DEC) and several of its member organizations submitted comments in support of the U.S. Department of Health and Human Services’ (HHS) proposed rule to restore and strengthen nondiscrimination protections in certain health programs and activities under the HCRL. 

The DEC comment supports the following proposed improvements in the new rule: 

• Sec. 1557 should apply broadly to health programs and activities to ensure access to and coverage of health care, including Medicare Part B; 
• Ensure meaningful access to resources for older adults with Limited English Proficiency; 
• Provide notice of nondiscrimination and notice of availability of language assistance services and auxiliary aids and services; 
• Ensure strong prohibitions on sex discrimination to address health disparities for LGBTQ+ older adults, to specifically include discrimination on the basis of sex stereotypes, sex characteristics, including intersex traits, sexual orientation, and gender identity; 
• Adopt a demographic data collection requirement and establishing demographic data collection as a function of civil rights monitoring, while ensuring accuracy and privacy; 
• Prohibit discrimination in benefit design, automated decision-making (including but not limited to “clinical algorithms”), and in telehealth services; 
• Designate a Section 1557 Coordinator at covered entities to establish policies and procedures and appropriately train employees; and 
• Allow intersectional claims that include age to proceed without administrative exhaustion. 

Several DEC member organizations also submitted their own comments based on healthcare discrimination experienced by their respective communities. The DEC comment featured a few of these stories, such as: the lack of language assistance services and/or qualified interpreters for older adults leading to miscommunication, misunderstanding, and costly medical complications, along with an over-reliance on relatives and informal caregivers for ongoing translation; and harassment directed at transgender older adults resulting from gender identity. 

The DEC thanks its members as well as Justice in Aging for engaging in this important process. We look forward to thoughtful consideration by HHS of all comments as it finalizes the rule for implementing needed anti-discrimination protections in the HCRL for diverse older adults.