Advocates for the country's healthcare safety net urged the Trump administration to rescind proposed changes to the Affordable Care Act's anti-discrimination provisions, alleging they could roll back protections for LGBTQ individuals and nonproficient English speakers.
HHS proposed changing provisions of Section 1557 of the ACA, which prohibits racial, gender, age or disability discrimination in health programs. The changes would effectively reverse a 2016 Section 1557 rule that added a regulatory definition of sex discrimination based on gender identity, which included gender expression and transgender status. Comments on the proposal are due Tuesday.
Opponents of the proposed rule contend it marks a significant step backward from recent progress by hospitals to foster greater inclusivity of LGBTQ individuals in their care delivery operations.
"This is erasing LGBTQ people," said Lisa Krinsky, director of the LGBT Aging Project at Boston-based, Fenway Health. "These are vulnerable and marginalized populations who are having a door closed and having it closed after having seen in the past decade or so these identities being incorporated already — so we're going backwards."
Fenway, Beth Israel Deaconess Medical Center, Boston Medical Center, Massachusetts General Hospital and several advocacy groups expressed concerns in public comment letters to the agency that removing nondiscrimination provisions could discourage LGBTQ individuals from seeking regular medical care and make the groups' health disparities worse.
"Removing these nondiscrimination provisions runs counter to the mission of the HHS to ensure the health and well-being of all Americans, including LGBT Americans," the letter stated. "We strongly urge you to reject this proposed rule."
In a letter sent to HHS' Office for Civil Rights on Friday, America's Essential Hospitals CEO Dr. Bruce Siegel said the proposed changes could allow healthcare providers and insurers to refuse services to transgender individuals.
"As proposed, the rollback of federal protection from discrimination will exacerbate the challenges transgender individuals face in health care settings," Siegel wrote. "Without these protections, transgender patients are less likely to receive high-quality, equitable care."
HHS announced in May the proposed rule was in response to ongoing litigation with states and providers over the 2016 rule, which led to a preliminary injunction that barred the agency from enforcing parts of the Section 1557 rule that were based on gender identity.
The agency also argued the rule change eliminates what it saw as "unnecessary regulatory costs" related to the 2016 rule that it estimated would save approximately $3.6 billion over the next five years in paperwork burdens and "duplicative requirements."
Other changes proposed in the rule include eliminating protections that prohibit differential coverage based on gender identity, which could allow health insurers to charge transgender individuals more for services related to their gender transition, according to an issue brief released in July by the Kaiser Family Foundation.
"For instance, under the existing regulation, health plans cannot deny medically necessary treatment for ovarian cancer in a transgender man based on his gender identity nor can they single out services for higher copays only when those services are related to gender transition," the brief said. "Under the proposed regulation, a health plan could deny coverage or impose greater cost-sharing in these circumstances." Under the proposed rule, health plans could also be allowed to deny, cancel or limit coverage or a claim, according to the KFF brief.
Providers also oppose the agency's plan to loosen standards requiring them to reasonably provide individuals with limited English proficiency with access to language assistance. Those requirements would be based on the number of eligible patients and costs of the services. Currently, hospitals have to provide language services based on the importance of the communication.
But America's Essential Hospital's Siegel said that puts too much of a burden on essential hospitals, and HHS should protect language services.
Krinsky said she felt hospitals that have made strides toward becoming LGBT-inclusive would likely continue their efforts even if HHS finalizes the proposed rule. But she said limiting federal protections may exacerbate LGBT patients' anxieties toward seeking healthcare.
"I think if there is a health center and they are already inclusive, they can communicate to their current patient population they continue to welcome them there," Krinsky said. "But if you have never been in the door before, you may be a little less likely to go when you're not sure how you will be treated."
