HHS Secretary Alex Azar (Photo: Screen Capture/House Appropriations) HHS Secretary Alex Azar (Photo: Screen Capture/House Appropriations)

The U.S. Department of Health and Human Services (HHS) is preparing to remove protection for gay and lesbian people from federal health care program antidiscrimination regulations.

The regulations have prohibited anyone associated with federally funded health care programs and activities — including Medicare Advantage plan issuers; Affordable Care Act exchange plan issuers; agents and brokers who sell Medicare Advantage plans or ACA exchange plans; and health care providers who accept Medicare or Medicaid — from discriminating against people on the basis of race, color, national origin, sex, age, disability, or gender identity.

HHS officials say they are deleting sexual orientation and gender identity from the regulations because they believe Obama-era HHS officials interpreted Section 1557 of Patient Protection and Affordable Care Act (PPACA) incorrectly.

“The department enforces statutory prohibitions on discrimination on the basis of race, color, national origin, age, disability, and sex discrimination because they are set forth in the text of statutes incorporated into Section 1557, and gender identity is not set forth as a protected category in those statutes,” officials say in the preamble, or introduction, to the new final regulations.

Some commenters told HHS that the 2016 regulations have decreased lesbian, gay, bisexual and transgender (LGBT) patients’ fear of health care-related discrimination, officials say in the preamble.

Those commenters said repealing protection for LGBT people will “lead to discrimination against them (including by states, providers, marketplaces, agents, and brokers) and that this will increase their health disparities, mainly via poorer quality of care, lack of access to willing providers especially in rural areas, postponed care including preventive care, increased healthcare and insurance costs, and impediments to HIV patients’ access to medication,” officials say.

Resources

  • A copy of the new final Section 1557 regulations is available here.
  • An article about the final Section 1557 regulations that were released in 2016 is available here.

But the new federal regulations will not affect state-level laws regulations prohibiting discrimination against LGBT people.

Even if poor treatment of gay people, lesbian people, transgender people or bisexual people is not discrimination under federal law, “unprofessional conduct such as inappropriate jokes or questions, excessive precautions, or concealment of treatment options, may be covered under state medical malpractice, tort, or battery law,” HHS officials say in the preamble to the new regulations.

If, for example, a physician performs an unnecessarily rough pelvic exam on a patient due to hostility toward a patient’s gender identity or sexual orientation, that “may be a case of battery or malpractice, which should be reported to local law enforcement and/or licensing authorities,” HHS officials say. “If such conduct willfully causes bodily injury because of gender identity, and is in or affecting interstate commerce, then it could be a federal hate crime.”

Moreover, because HHS has not been enforcing the 2016 Section 1557 regulations, it’s not clear how much practical effect the 2016 regulations have had on LGBT people’s access to health care, officials say.

Older People, People With Disabilities and People With Low English Proficiency

In addition to eliminating protections for LGBT people from the final regulations, HHS has removed Section 1557 regulation provisions regarding grievance procedures, enforcement procedures, and injured people’s ability to file lawsuits.

“This final rule will defer to the relevant existing regulations and the relevant case law with respect to each of the underlying civil rights statutes,as applied to the health context under Section 1557,” officials say.

That means that older people who feel as if they have been affected by health care-related age discrimination, or people with vision problems who feel as if they have been affected by disability-related health discrimination, will have to address those concerns with actions based on laws other than PPACA Section 1557.

The ACA requires the health care system to serve people who speak little or no English.

The 2016 regulations have required system participants, including health insurers, to offer language assistance services to every “low English proficiency” individual.

The new final rule simply requires “covered entities” to “take reasonable steps to ensure meaningful access to its programs or activities” by people with low English proficiency.

Another change will delete discrimination based on pregnancy status from the list of prohibited forms of health care discrimination.

Nuts and Bolts

HHS Secretary Alex Azar II signed the regulation.

An early version of the final regulations appeared Friday in the Federal Register. The regulation is on track to show up in the print version of the Federal Register June 1.

The rule is set to take effect 60 days after the official Federal Register publication date.

The History

PPACA is one of the two federal laws in the Affordable Care Act statutory package.  HHS completed the original ACA antidiscrimination regulation in 2016, to implement PPACA Section 1557.

PPACA Section 1557 forbids any health program or activity that’s receiving federal financial assistance from discriminating against an individual based on grounds prohibited under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, or Section 504 of the Rehabilitation Act of 1973.

The HHS secretary “may promulgate regulations to implement this section,” according to the text of the law.

Section 1557 itself does not list specific forms of prohibited discrimination

Under former President Barack Obama, HHS officials said Section 1557 prohibits discrimination based on gender identity as well as race, color, national origin, sex, age, and disability.

HHS officials said, in 2016, that discrimination “on the basis of sex” includes “discrimination on the basis of gender identity (‘an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female’),” according to current HHS officials’ summary of the Obama-era officials’ position.

The U.S. District Court for the Northern District of Texas ruled, in Franciscan Alliance Inc. v. Burwell, that HHS could not enforce the regulation provisions relating to discrimination on the basis of gender identity and termination of pregnancy.

When Donald Trump became president, in January 2017, his administration declined to appeal the district court ruling. The ruling has had the effect of blocking the Section 1557 regulations.

HHS officials say the new final regulation provides a “return to the plain meaning ‘on the basis of sex.’”

Obama-era HHS officials noted when they published the final 2016 regulations that earlier regulations had already prohibited the ACA public exchange programs and some other programs from discriminating against consumers based on sexual orientation.

HHS officials say in the preamble to the new regulations that they are amending a total of 10 Centers for Medicaid and Medicaid Services regulations that have prohibited discrimination on the basis of gender identity or sexual orientation.

Reactions

Matt Eyles, chief executive officer of America’s Health Insurance Plans (AHIP), said in a statement that the health insurer group opposes the new final regulations.

“Every single American deserves affordable, quality health care regardless of race, color, national origin, sex, gender identity, sexual orientation, age, or disability,” Eyles said in the statement. “That is the firm commitment of AHIP’s members — which together serve hundreds of millions of Americans. We resolutely disagree with any attempt to remove protections in federal law that prohibit discrimination based on gender identity, sex stereotyping, and pregnancy status. We also firmly believe that non-English speakers should have ready access to health information.

“Discrimination is wrong — period. Health insurance providers will continue to work with other health care leaders to eliminate barriers that stand between Americans who identify as a member of the LGBTQIA [ esbian, gay, bisexual, transgender, queer, questioning, intersex and asexual] community and their better health.”

— Read LGBT Community Eyes PPACA’s Anti-Discrimination Provisionson ThinkAdvisor.

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