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.
- 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 a “covered entity” 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.