HHS seeks to change how far civil rights protections extend and how those protections are enforced.
This article was first published on Wednesday, June 12, 2019 in Kaiser Health News.
A new Trump administration proposal would change the civil rights rules dictating whether providers must care for patients who are transgender or have had an abortion. Supporters of the approach say it protects the freedom of conscience, but opponents say it encourages discrimination.
The sweeping proposal has implications for all Americans, though, because the Department of Health and Human Services seeks to change how far civil rights protections extend and how those protections are enforced.
Roger Severino, the director of the HHS Office for Civil Rights, has been candid about his intentions to overturn an Obama-era rule that prohibited discrimination based on gender identity and termination of a pregnancy. In 2016, while at the conservative Heritage Foundation, he co-authored a paper arguing the restrictions threaten the independence of physicians to follow their religious or moral beliefs.
His office unveiled the proposed rule on May 24, when many people were focused on the start of the long Memorial Day holiday weekend.
The rule is the latest Trump administration proposal to strip protections for transgender Americans, coming the same week another directive was proposed by the Department of Housing and Urban Development that would allow homeless shelters to turn away people based on their gender identity.
The public was given 60 days to comment on the HHS proposal. Here's a rundown of what you need to know about it.
What would this proposal do?
Fundamentally, the proposed rule would overturn a previous rule that forbids healthcare providers who receive federal funding from discriminating against patients on the basis of their gender identity or whether they have terminated a pregnancy.
The Trump administration proposal would eliminate those protections, enabling providers to deny these groups care or insurance coverage without having to pay a fine or suffer other federal consequences.
That may mean refusing a transgender patient mental healthcare or gender-confirming surgery. But it may also mean denying patients care that has nothing to do with gender identity, such as a regular office visit for a bad cold or ongoing treatment for chronic conditions like diabetes.
"What it does, from a very practical point of view, is that it empowers bad actors to be bad actors," Mara Keisling, executive director of the National Center for Transgender Equality, told reporters.
The proposal would also eliminate protections based on sexual orientation and gender identity from several other healthcare regulations, like non-discrimination guidelines for the healthcare insurance marketplaces.
Does it affect only LGBTQ people?
The proposal goes beyond removing protections for the LGBTQ community and those who have had an abortion.
It appears to weaken other protections, such as those based on race or age, by limiting who must abide by the rules. The Trump proposal would scrap the Obama-era rule's broad definition of which providers can be punished by federal health officials for discrimination, a complicated change critics have said could ease requirements for insurance companies, for instance, as well as the agency itself.
And the proposal erases many of the enforcement procedures outlined in the earlier rule, including its explicit ban on intimidation or retaliation. It also delegates to Severino, as the office's director, full enforcement authority when it comes to things like opening investigations into complaints lodged under the non-discrimination rule.
Why did HHS decide to change the rule?
The Obama and Trump administrations have different opinions about whether a healthcare provider should be able to refuse service to patients because they are transgender or have had an abortion.
It all goes back to a section in the Affordable Care Act barring discrimination on the basis of race, color, national origin, age, disability or sex. President Barack Obama's health officials said it is discrimination to treat someone differently based on gender identity or stereotypes.
It was the first time Americans who are transgender were protected from discrimination in healthcare.
But President Donald Trump's health officials said that definition of sex discrimination misinterprets civil rights laws, particularly a religious freedom law used to shield providers who object to performing certain procedures, such as abortions, or treating certain patients because they conflict with their religious convictions.
"When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform," Severino said in a statement. "The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives."
Much of what the Office for Civil Rights has done under Severino's leadership is to emphasize and strengthen so-called conscience protections for healthcare providers, many of which existed well before Trump was sworn in. Last year, Severino unveiled a Conscience and Religious Freedom Division, and his office recently finalized another rule detailing those protections and their enforcement.
The office also said the proposed rule would save about $3.6 billion over five years. Most of that would come from eliminating requirements for providers to post notices about discrimination, as well as other measures that cater to those with disabilities and limited English proficiency.
The rule would also save providers money that might instead be spent handling grievances from those no longer protected.
The office "considers this a benefit of the rule," said Katie Keith, co-founder of Out2Enroll, an organization that helps the LGBTQ community obtain health insurance. "Organizations will have lower labor costs and lower litigation costs because they will no longer have to process grievances or defend against lawsuits brought by transgender people."
Why does this matter?
Research shows the LGBTQ community faces greater health challenges and higher rates of illness than other groups, making access to equitable treatment in healthcare all the more important.
Discrimination, from the misuse of pronouns to denials of care, is "commonplace" for transgender patients, according to a 2011 report by advocacy groups. The report found that 28% of the 6,450 transgender and gender non-conforming people interviewed said they had experienced verbal harassment in a healthcare setting, while 19% said they had been refused care due to their gender identity.
The report said 28% had postponed seeking medical attention when they were sick or injured because of discrimination.
Critics fear the rule would muddy the waters, giving patients less clarity on what is and is not permissible and how to get help when they have been the victims of discrimination.
Jocelyn Samuels, the Obama administration official who oversaw the implementation of the Obama-era rule, said that for now, even though the Trump administration's HHS will not pursue complaints against those providers, Americans still have the right to challenge this treatment in court. Multiple courts have said the prohibition on sex discrimination includes gender identity.
"The administration should be in the business of expanding access to healthcare and health coverage," Samuels told reporters on a conference call after the rule's release. "And my fear is that this rule does just the opposite."
“What it does, from a very practical point of view, is that it empowers bad actors to be bad actors. ”
Mara Keisling, executive director of the National Center for Transgender Equality
Kaiser Health News is a national health policy news service that is part of the nonpartisan Henry J. Kaiser Family Foundation.
Photo credit: New Africa / Shutterstock
The Trump proposal would scrap the Obama-era rule's broad definition of how providers can be punished for discrimination.
The rule is the latest Trump administration proposal to strip protections for transgender Americans, coming the same week as another directive that would allow homeless shelters to turn away people based on their gender identity.