Health care organizations that receive federal funding would also be prohibited from discriminating against gender transition and other services that have increasingly become the target of state legislative battles and lawsuits. Officials also noted that the new federal anti-discrimination language covers a patient’s sexual orientation and gender identity.
“I think most Americans are familiar with their rights to be free from discrimination — but all too often, there are some communities that don’t have that freedom to exercise their rights to access care, HHS Secretary Xavier Becerra told reporters Monday. “We want to make sure that whoever you are, whatever you look like, wherever you live, however you want to live your life, you have access to the care you need.”
The proposed rule strengthens a provision, Section 1557 of the Affordable Care Act, that was drafted during the Obama administration but was weakened by his successor and has been the subject of extensive litigation. The proposal is also made part of the Biden administration’s strategy to secure access to abortion after the Supreme Court’s decision to overturn Roe v. Wade.
“We are very pleased to be able to make this announcement today. It comes at an important time, especially after the wrong decision of the Supreme Court Dobbs,” Becerra said, referring to the high court ruling that led to the abortion restrictions taking effect last month.
Experts said they were still analyzing the implications of the proposed rule in the battle over abortion rights, as a cascade of states implement new restrictions.
“I think people who oppose this rule will try to interpret it as a mandate for abortion. This is far from the case,” said Katie Keith, director of the Health Policy and Law Initiative at Georgetown Law’s O’Neill Institute.
HHS on Monday also asked the public to submit comments on the impact of Dobbs health care decision, which officials can use to make changes to the final version.
The Biden administration “may just be holding their cards because they’re afraid of the backlash,” said Roger Severino, who led HHS’s civil rights office during the Trump administration and predicted the final rule could be “more aggressive.” for access to abortion. .
LGBTQ advocacy organizations applauded the announcement, saying the Biden administration was right to restore and expand federal language that would protect people seeking gender transitions, people with disabilities and others facing discrimination. .
“Today’s proposal restores critical protections that were undermined by the Trump administration,” Kellan Baker, executive director and chief teaching officer of the Whitman-Walker Institute, said in a statement.
The White House had been reviewing the draft rule since March, holding meetings with advocates from the Heritage Foundation, the Family Research Council and other conservative and faith-based organizations that argued against reversing the Trump-era changes. The groups claimed the rule change would force health care providers to perform procedures against their religious beliefs, or allow children to begin gender transitions they may later regret.
“All we’re trying to do is advocate for care and compassion informed by evidence rather than ideology,” officials of Genspect, an international parent group that has questioned the need for genitive transitions, has written to administration officials in April after a meeting.
HHS officials said Monday they had sought to accommodate some of the groups’ concerns, pointing to provisions that explicitly address protections for providers who raise conscientious objection or religious objections to performing certain procedures such as abortion.
“It’s kind of a victory,” said Severino, who oversaw a Trump-era effort for it create an office focused on conscience and religious freedom for health providers. But he said that other parts of the proposal were “downright scary,” citing provisions he said could be used to punish doctors who refuse to perform transition-related surgeries because of state or local laws, or because they don’t believe the procedures are clinically appropriate.
“If you think they’re never clinically appropriate, you’re considered a freak by the government,” leading to the loss of federal funding, Severino said.
Meanwhile, LGBTQ groups have spent months warning that patients’ rights are under attack at home, in the workplace and in the courts.
“Gender-affirming health care is essential health care,” David Brown, legal director of the Transgender Legal Defense and Education Fund, said in a statement. declaration last month, after a federal court ruled that a North Carolina state health plan was wrong to deny patients access to hormone replacement therapy, surgeries and other care related to gender transition.
The proposed rule would apply to health insurance plans that do business through the Obamacare, Medicaid or Medicare exchanges. For the first time, nondiscrimination provisions will apply to Medicare Part B, which covers doctor visits, some preventive services and other outpatient care for those who are 65 or older or have disability benefits. HHS officials said they were concerned that repeating the Obama-era rule had inadvertently led to loopholes in federal protections.
Biden administration officials say they are bracing for legal challenges amid ongoing litigation that has contributed to delays in his extradition. The Biden administration had previously said in legal filings that the proposed rule would be issued in April.
“No doubt someone could challenge us and say we’re not interpreting the law correctly,” said Becerra, who previously served as California’s attorney general and sued the Trump administration on its own changes to the rule. “We think we are.”
The Trump administration had also scaled back requirements for most health care providers to post information in 15 languages and offer translation services. The new rule seeks to restore access to language assistance services.
“It’s small, maybe, but it’s also very important,” Becerra said.