As the Trump administration has sought a broader push to expand healthcare "conscience rules," officials announced Friday a proposal (PDF) to remove healthcare protections for transgender patients and women seeking to terminate pregnancies.
During the Obama administration, the Department of Health and Human Services (HHS) Office of Civil Rights (OCR) announced it would bar providers who receive federal funding from discriminating on the basis of gender identity under a part of the Affordable Care Act (ACA) known as Section 1557.
OCR officials said Friday they would continue to "vigorously enforce" bans of discrimination on the basis of race, color, national origin, disability, age and sex. But the agency intends to return to the "plain meaning" of sex discrimination Congress intended, Roger Severino, director of OCR, said in a call with reporters.
The proposed rule would apply to federally facilitated and state-based health insurance exchanges created under the ACA and the qualified health plans offered by issuers on those exchanges.
“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” said Severino. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives. The proposed rule would accomplish both goals.”
Beyond the interpretation of sex discrimination, Severino said the proposed changes would reduce regulatory rules that require insurers to print and mail unnecessary informational flyers that inform patients and customers of their ability to have “significant documents” translated in at least 15 languages. That would save more than $3.2 billion over five years, Severino said.
Severino—who previously researched religious issues at the conservative Heritage Foundation—co-authored a paper that argued OCR’s interpretation of Section 1557 as barring discrimination based on gender identity threatened healthcare providers who “as a matter of faith, moral conviction or professional medical judgment, believe that maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases."
Earlier this month, OCR released a final rule intended to protect individuals and healthcare entities from discrimination on the basis of their exercise of conscience in HHS-funded programs. A coalition of 23 states and municipalities quickly filed a lawsuit (PDF) challenging the rule.
Severino told reporters the proposal is also in response to a federal court injunction around HHS interpretation of sex discrimination.
"There are restrictions on funding of abortion or forcing people to engage in abortion. We have a rule that's separate to this based on conscience. Many of those protections for conscience were not included in the 2016 rule-making that said 'on the basis of sex' includes the termination of pregnancy," he said.
The question arose as to whether the 2016 rule required entities to either pay for or cover abortion, and there was a question about whether that conflicted with federal law, he said. "This proposed rule clarifies that, in fact, the protections for conscience and protections against coercion when it comes to abortion are in full effect because that's part of statutory law," he said.
He did not directly respond to questions about whether this would result in a loss of access to care for transgender patients. "It does not mean entities are in any way restricted in how they provide their healthcare," Severino said.
The American Hospital Association (AHA) and the American Medical Association released statements saying they were still evaluating the impact of the proposal but reiterated their belief in protections against discrimination.
"Hospitals and health systems value all individuals they have the opportunity to serve, and oppose discrimination against patients based on characteristics such as race, religion, national origin, sexual orientation, or gender identity," the AHA wrote in its statement. "While we are carefully reviewing the proposed rule, our core value of providing service to all will continue to guide our care for patients and our commitment to treat all with dignity and respect."