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Health-care organizations that receive federal funding would also be barred from discriminating against gender transitions and other services that have increasingly become the target of state legislative battles and litigation. Officials also stressed 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 too often, there are some communities who 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 wish to live your life, that you have access to the care that you need.”
The proposed rule strengthens a provision, Section 1557 of the Affordable Care Act, that was crafted during the Obama administration but weakened by his successor and has been the subject of extensive litigation. The proposal has also become part of the Biden administration’s strategy to ensure access to abortion in the wake of the Supreme Court’s decision to overturn Roe v. Wade.
“We’re very delighted to be able to make this announcement today. It comes at an important time, especially after the Supreme Court’s wrongheaded decision in Dobbs,” Becerra said, referencing the high court’s ruling that led to abortion restrictions taking effect last month.
Experts said they were still parsing the proposed rule’s implications in the battle over abortion rights, as a cascade of states implement new restrictions.
“I think people who oppose this rule will try and construe it as a mandate for abortion. That’s just so far from the case,” said Katie Keith, director of the Health Policy and the Law Initiative at Georgetown Law’s O’Neill Institute.
HHS on Monday also requested that the public submit comments on the impact of the Dobbs decision on health care, which officials could 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 the HHS civil rights office during the Trump administration and predicted the final rule could be “more aggressive” on access to abortion.
LGBTQ advocacy organizations cheered the announcement, saying the Biden administration was right to restore and broaden federal language that would protect people seeking gender transitions, people with disabilities and others who face discrimination.
“Today’s proposal restores critical protections that were undermined by the Trump Administration,” Kellan Baker, executive director and chief learning 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, Family Research Council and other conservative and religious organizations that argued against reversing the Trump-era changes. The groups contended 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 are trying to do is advocate for caution, and compassion informed by evidence and not ideology,” officials with Genspect, an international parents group that has questioned the need for gender transitions, wrote to administration officials in April after a meeting.
HHS officials on Monday said they had sought to incorporate some of the groups’ concerns, pointing to provisions that explicitly addressed protections for providers who raised conscience or religious objections to performing certain procedures such as abortion.
“It is a victory of sorts,” said Severino, who oversaw a Trump-era effort to establish 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 that he said could be used to punish physicians who refuse to perform transition-related surgeries because of state or local laws, or because they do not believe the procedures are clinically appropriate.
“If you think they are never clinically appropriate, you’re considered a bigot by the government,” leading to a loss of federal funds, Severino said.
LGBTQ groups, meanwhile, have spent months warning that the rights of patients are under assault in the home, the workplace, and the courts.
“Gender affirming health care is essential health care,” David Brown, the legal director of the Transgender Legal Defense & Education Fund, said in a statement 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 transitions.
The proposed rule would apply to health insurance plans that do business through the Obamacare exchanges, Medicaid or Medicare. For the first time, the nondiscrimination provisions would apply to Medicare Part B, which covers visits to physicians, some preventive services and other outpatient care for those who are 65 or older, or who have disability benefits. HHS officials said they were worried that the Obama-era iteration of the rule had inadvertently led to gaps in federal protections.
Biden administration officials say they are bracing for legal challenges, amid ongoing litigation that contributed to delays in issuing it. The Biden administration had previously said in legal filings that the proposed rule would be issued in April.
“No doubt someone may challenge us and say that we’re not interpreting the law properly,” said Becerra, who previously served as California attorney general and sued the Trump administration over its own changes to the rule. “We think we are.”
The Trump administration had also scaled back requirements that most health-care providers post information in 15 languages and make translation services available. The new rule seeks to restore access to language assistance services.
“That’s a small one, perhaps, but it’s also very important,” Becerra said.
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