HHS throws out Obama-era rule against gender discrimination

The Trump administration Friday overturned an Obama-era rule that banned discrimination against patients based on gender identity.

The regulation from the HHS’ Office for Civil Rights drops protections based on gender identity from the ACA’s chief anti-discrimination provision. OCR similarly ended nondiscrimination protections for LGBTQ people by modifying other CMS rules, including standards for qualified health plans and the ACA marketplaces, even though they’re not related to and predate the OCR rule. When the agency proposed the changes, it expected half of all covered entities to ditch their gender and sexual-orientation nondiscrimination policies as a result.

“HHS will enforce Section 1557 by returning to the government’s interpretation of sex discrimination according to the plain meaning of the word “sex” as male or female and as determined by biology,” HHS said in a statement. “The 2016 Rule declined to recognize sexual orientation as a protected category under the ACA, and HHS will leave that judgment undisturbed.”

The rule also gets rid of notice and tag line requirements. Under the rule, pharmacies, insurers and other covered organizations won’t have to make their healthcare and insurance mailings available in 15 or more languages.

The Office for Civil Rights said the changes would ensure meaningful access for people with low English proficiency by applying a four-factor analysis to determine whether someone needs help and retaining the translator and interpreter qualification requirements from the 2016 rule.

The agency expects the changes to lower regulation-related costs by about $2.6 billion over five years. Most of the savings come from excluding non-English tag lines and notices in explanations of benefits and other significant documentation.

HHS said the mailing translation costs “get passed down to patients and consumers. These expensive notices have not generally proven effective at accomplishing their purpose of providing meaningful language access to healthcare.”

Many providers, patient advocates and public officials oppose the new rule, arguing that it will undo the social progress the healthcare industry made in recent years by allowing healthcare discrimination against LGBTQ people. They worry that providers and insurers could deny services to transgender people or charge them more for transition-related services, among other concerns.

They’re worried that the notice and tag line changes will make it more difficult for people to get care if they don’t speak English proficiently. That could lead to worse health outcomes for some populations and drive up healthcare spending if people delay needed care.

Opponents of the changes fear that people will be less likely to seek care if they’re worried providers will discriminate against them or if they don’t understand their healthcare options. The COVID-19 pandemic has exacerbated their concerns.

The Trump administration defended the policy, arguing that it had to make the changes because the Office for Civil Rights violated its authority under Section 1557 of the ACA when it issued the regulation in 2016. It also claimed the Obama-era rules were confusing and unjustifiably expensive and burdensome.

U.S. District Judge Reed O’Connor in Texas tossed out the bans on discrimination based on gender identity and termination of pregnancy in October 2019, saying they violated administrative procedure and religious liberty rules.

According to a 2017 survey by the liberal Center for American Progress, LGBTQ people who experienced any discrimination were almost seven times more likely to say they avoided going for an office visit to avoid discrimination. About 1 in 4 LGBTQ people experienced discrimination during the previous year, with nearly 30% of transgender adults reporting that a provider refused to see them due to their actual or perceived sexual orientation.