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Analysis

HHS OCR Moves to Roll Back ACA's Nondiscrimination Regulations

By Steven Porter  
   May 24, 2019

Trump administration officials are proposing to undo provisions of a healthcare nondiscrimination regulation implemented by the Obama administration, saying they are incongruent with the law.

A notice of proposed rulemaking released Friday morning by the Health and Human Services Office for Civil Rights (OCR) would reduce healthcare nondiscrimination protections for transgender people, unwinding certain provisions of a regulation the Obama administration adopted in 2016 under the Affordable Care Act.

The proposal would maintain portions of the regulation but remove protections based on gender identity and termination of pregnancy. The change is needed, says HHS OCR Director Roger Severino, to bring the regulation into compliance with federal law—the current interpretation of which is up for argument before the nation's highest court.

"The previous administration took an interpretation of 'discrimination on the basis of sex' to cover gender identity and termination of pregnancy. This is a disputed question that has reached the Supreme Court now," Severino said during a press call Friday.

"We are taking a position now consistent with the federal government on this question and consistent with the position that had reigned for decades before around 2016, at least with respect to healthcare," Severino added.

Some healthcare providers complained that the Obama administration's final rule effectively sought to coerce them into providing healthcare services that contradicted their own medical judgment on the care their patients need. Opponents of the rule sued and persuaded federal judges to block particular provisions from taking effect. Proponents of the Obama administration's effort to shore up healthcare access for transgender patients, however, argue that it's unreasonable to think "sex discrimination" under the ACA's Section 1557 doesn't include gender identity.

This latest HHS OCR proposal comes about three weeks after the office finalized a rule to bolster the religious and conscience rights of healthcare workers and organizations that may object to assisting in the facilitation of certain healthcare services, including abortion and gender transition care.

Related: Final Rule Bolsters Providers' Right to Refuse Services They Deem Objectionable

Related: HHS Policy Pendulum Swinging Back Toward Providers' Rights of Conscience

Related: Meeting the Need for Gender-Affirmation Services

When asked by HealthLeaders about the combined impact these two rules would have and what HHS OCR will do to ensure that transgender people have access to healthcare, Severino said HHS exists to make sure everyone has access to healthcare.

"That's part of our mission, to make sure the health and wellbeing of all Americans is furthered. That goal is not changed by this rule," he said. "In fact, this rule is in keeping with it."

Severino said the rule is about narrow interpretations of the ACA and gives healthcare providers freedom to conduct themselves in accordance with the nondiscrimination provisions written by Congress, not the White House.

"We have a lot of diversity in healthcare. We have a lot of options for people. This rule does not go in and tell people how to practice medicine," he said. "It is about nondiscrimination, principles that are enshrined in our law."

Effects for Non-English Speakers
 

The existing regulation requires covered entities to distribute so-called "tagline" notices annually, which inform patients that they may have significant documents translated into at least 15 other languages. Those notices, however, are more cumbersome than projected and should no longer be required, the Trump administration says. 

The taglines were originally projected to cost about $7.2 million in the first five years, but the rule failed to fully account for printing and mailing costs, so the actual cost is more than $3 billion higher than projected, according to HHS OCR's announcement Friday. An across-the-board tagline requirement resulted in billions of notices being sent to English speakers who don't need them, the announcement states.

"As a child of Hispanic immigrants, I know how vitally important it is that people receive quality healthcare services regardless of the language they speak, and this proposal grants providers the needed flexibility for achieving that goal," Severino said in a statement, adding that the unnecessary regulations have impeded healthcare affordability.

Skeptics and Detractors
 

The proposal was met with skepticism and criticism from a range of healthcare advocacy groups.

"The administration's proposal to roll back protections for many of our most vulnerable populations will worsen existing barriers to access and increase disparities," said Bruce Siegel, MD, MPH, president and CEO or America's Essential Hospitals, in a statement. "Discrimination in any form has no place in health care. Our hospitals embrace this principle and care for all who walk through their doors. They have made progress closing gaps in care and reducing disparities among vulnerable populations, including the LGBTQ community and individuals with limited English proficiency. This is a step backward and undermines their work to build greater equity in care."

"We see no policy justification for this change, and we strongly urge the administration to reconsider its position," Siegel added.

American Medical Association President-elect Patrice A. Harris, MD, MA, said the AMA is assessing what the full effect of the proposal would be.

"The AMA strongly believes that discrimination on the basis of sex includes discrimination on the basis of gender identity and sexual orientation," Harris said in a statement. "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," Harris added.

Leana Wen, MD, president and CEO of the Planned Parenthood Federation of America called the proposal "yet another attack on women and LGBTQ people from the Trump-Pence administration," adding that such groups "already face discrimination and limited access to care."

Wayne Turner, a senior attorney for the National Health Law Program, said this is merely the latest example of the Trump administration seeking to weaken the ACA.

"The proposed regulation changes could ultimately lead to more people becoming uninsured because of the lack of protections from discrimination in health care services and plans," Turner said in a statement.

Rules Don't Apply to Short-Term Plans
 

The proposal also seeks to redefine the scope of the Section 1557 regulation. Any entity that does not receive money from HHS and any component that is "not principally engaged in the business of providing health care," would fall outside the scope of the proposed regulation's nondiscrimination provisions.

"If an entity, such as a health insurance issuer, receives Federal financial assistance from [HHS] to further a health program or activity but is not principally engaged in the business of providing health care, the proposed regulation would apply to the entity’s specific operations which receive Federal financial assistance from [HHS], but it would not apply to the entity's entire operations," the proposal states. "Thus, for example, the proposed rule would generally not apply to short term limited duration insurance (STLDI) because, as [HHS] understands it, providers of STLDI are either (1) not principally engaged in the business of health care, or (2) not receiving Federal financial assistance with respect to STLDI plans specifically."

Trump administration officials have expanded access to these short-term plans, touting them as a cheaper alternative to ACA-compliant insurance and prompting concern that healthier people could migrate to less-comprehensive health plans and leave sicker populations behind with higher premiums in ACA-compliant markets.

Editor's note: This story was updated Friday, May 24, 2019, to include additional information from the proposed rule and commentary from several advocacy groups.

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.

Photo credit: The homepage of the official website for the United States Department of Health and Human Services. (Editorial credit: chrisdorney / Shutterstock.com)


KEY TAKEAWAYS

The proposal removes gender identity and pregnancy termination from a nondiscrimination policy implemented by the Obama administration.

There's a relevant dispute over the definition of sex-based discrimination brewing before the U.S. Supreme Court.

The proposal notes that short-term limited-duration health plans would generally fall outside the scope of the nondiscrimination policy.


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