WASHINGTON — A rule proposed Friday by the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) appears to allow healthcare providers to discriminate against transgender patients under certain circumstances, and would also apparently allow healthcare providers to refuse to provide services related to abortion and to patients who have had abortions.
“In Section 1557 of the ACA [Affordable Care Act], Congress directed HHS to apply existing civil rights laws and regulations to healthcare and the ACA Exchanges, including a 1972 law prohibiting discrimination on the basis of sex in certain federally funded programs,” the agency said in a press release. “In 2016, HHS issued a new rule that redefined discrimination ‘on the basis of sex’ to include termination of pregnancy and gender identity which it defined as one’s internal sense of being ‘male, female, neither, or a combination of male and female.'”
However, two federal courts have enjoined those provisions of Section 1557; as a result, OCR is issuing a proposed rule to comply with the court decisions, OCR director Roger Severino said on a Thursday morning phone call with reporters. The press release noted that the courts found that the transgender and abortion provisions were “contrary to the applicable civil rights law, the Religious Freedom Restoration Act, and the Administrative Procedure Act.”
“Our position … conforms with the text of the law itself. …We are not issuing an affirmative definition of sex in the regulation,” said Severino. He added that “We believe in the inherent human dignity of all people. HHS is here to make sure access to healthcare is available for everyone; it’s part of our mission. … That goal is not changed by this rule — in fact, this rule is in keeping with it.”
Some Answers Unclear
When MedPage Today asked whether the proposed rule would allow providers to discriminate against transgender patients under certain circumstances, Severino did not answer directly. “We are not preempting state laws that may apply; if there’s any other federal regulation with respect to the provision of services, our proposed regulation may not apply. What it does do is say that the scope of discrimination on the basis of sex would no longer include gender identity … From the HHS perspective, it retains the current status quo … Nothing in the rule prohibits any entity from providing a range of services to any individual according to their medical judgment, and that includes any services related to their gender identity.”
Jocelyn Samuels, JD, who was director of the OCR during the Obama administration, disagreed during a phone interview with the idea that the court decisions mandate the proposed rule. In addition, the decisions “did not affect the ability of individuals to file lawsuits in court to hold entities accountable for discrimination, and there have been a number of cases since the injunction was issued that held that gender identity discrimination is prohibited in the [ACA itself],” which Section 1557 is interpreting, said Samuels, who is now executive director of the Williams Institute at the University of California Los Angeles.
The proposed rule “also casts doubt on whether [OCR] thinks discrimination based on sex stereotyping would violate the law, which would end decades of Supreme Court precedent,” Samuels said. In a 1989 case known as Price Waterhouse v. Hopkins, which involved a woman who was denied a promotion because she was too aggressive and not behaving the way a woman should, “the Supreme Court said that’s as much sex discrimination as saying, ‘We don’t promote people who have ovaries,'” said Samuels. “If sex stereotyping is not in the rule, we could have physicians refusing to treat women who they thought were too aggressive in seeking care … That’s a hypothetical, but the idea that they’d question whether that’s a viable theory of sex discrimination is just remarkable.”
Swift Reactions from Interest Groups
Think tanks and interest groups wasted little time responding to the proposed rule. “The Trump administration is right to revise Obamacare’s unlawful regulation that was blocked from taking effect by a federal court. It would have forced physicians to offer sex-reassignment procedures and abortions despite strong ethical and medical concerns,” Emilie Kao, director of the DeVos Center for Religion and Civil Society at the Heritage Foundation, a right-leaning think tank, said in a statement. “No American should be forced to violate deeply held beliefs, especially in hotly debated issues in healthcare. All Americans should be able to choose healthcare and health insurance that best fits their needs and beliefs.”
The American Civil Liberties Union (ACLU) disagreed. “This move by the Trump administration is nothing less than an act of violence against those whose healthcare needs have historically been ignored, neglected, and dismissed,” Louise Melling, the ACLU’s deputy legal director, said in a statement. “Transgender and non-binary people experience staggering rates of discrimination from healthcare institutions and providers. They face the denial of medically necessary healthcare related to gender transition, harassment from medical providers, negligent care, and the refusal of medical service altogether. The administration wants to take away protections to stop that discrimination, an action that will lead to devastating health consequences.”
The American College of Physicians (ACP) said it was “deeply concerned” about the proposed rule. The “ACP is committed to improving the health of all Americans and opposes discrimination against any patient in the delivery of health care services,” ACP president Robert McLean, MD, said in a statement. “ACP believes that discrimination against patients, including those who identify as lesbian, gay, bisexual, and transgender (LGBT), creates social stigma that has been linked to negative physical and mental health outcomes, including anxiety, suicide, and substance or alcohol abuse … ACP policy also states that it is unethical for physicians to discriminate against any category of patients.”
The “ACP strongly urges the administration to withdraw their proposal, and instead, make meaningful policy changes that will ensure non-discrimination in health care against all patients, regardless of their sexual orientation, gender or gender identity, or disability.”
Patrice Harris, MD, president of the American Medical Association (AMA), said in a statement that the AMA was still assessing the rule, but added, “The AMA strongly believes that discrimination on the basis of sex includes discrimination on the basis of gender identity and sexual orientation. Similarly, the AMA does not condone discrimination based on whether a woman has had an abortion. Respect for the diversity of patients is a fundamental value of the medical profession and reflected in long-standing AMA ethical policy opposing discrimination based on race, gender, sexual orientation, gender identity, pregnancy, or termination thereof.”
Rollback of Rule Addressing Non-English Speakers
The proposed rule also rolls back a requirement that covered entities — such as health plans — to provide notices of non-discrimination and “taglines” about available interpretation services in up to 15 languages at the bottom of every significant communication they send to patients or consumers. “Getting rid of that requirement would save an estimated $3.2 billion over 5 years,” Severino said. “The requirement is not supported by the evidence; we’ve heard from trade groups and language access experts. They have not found sufficient evidence of increased language access … The overwhelming majority of mailing inserts were sent to English speakers.”
Samuels disagreed. “I don’t know what kind of empirical analysis the department has done to make that assertion,” she said. “Maybe if they’d done a survey of providers to ask if those who adopted this guideline got more requests [for language assistance], but whether OCR has undertaken that is unclear … The fact that those who need that assistance are a minority of people does not obviate the need to comply with the non-discrimination requirement.”
Source: MedicalNewsToday.com
