Trump administration rule would undo healthcare protections for LGBTQ patients

By Emmarie Huetteman

A new Trump administration proposal would change the civil rights rules dictating whether providers must care for patients who are transgender or have had an abortion. Supporters of the approach say it protects the freedom of conscience, but opponents say it encourages discrimination.

The sweeping proposal has implications for all Americans, though, because the Department of Health and Human Services seeks to change how far civil rights protections extend and how those protections are enforced.

Roger Severino, the director of the HHS Office for Civil Rights, has been candid about his intentions to overturn an Obama-era rule that prohibited discrimination based on gender identity and termination of a pregnancy. In 2016, while at the conservative Heritage Foundation, he co-authored a paper arguing the restrictions threaten the independence of physicians to follow their religious or moral beliefs.

His office unveiled the proposed rule on May 24, when many people were focused on the start of the long Memorial Day holiday weekend.

The rule is the latest Trump administration proposal to strip protections for transgender Americans, coming the same week another directive was proposed by the Department of Housing and Urban Development that would allow homeless shelters to turn away people based on their gender identity.

The public was given 60 days to comment on the HHS proposal. Here’s a rundown of what you need to know about it.

What would this proposal do?

Fundamentally, the proposed rule would overturn a previous rule that forbids health care providers who receive federal funding from discriminating against patients on the basis of their gender identity or whether they have terminated a pregnancy.

The Trump administration proposal would eliminate those protections, enabling providers to deny these groups care or insurance coverage without having to pay a fine or suffer other federal consequences.

That may mean refusing a transgender patient mental health care or gender-confirming surgery. But it may also mean denying patients care that has nothing to do with gender identity, such as a regular office visit for a bad cold or ongoing treatment for chronic conditions like diabetes.

“What it does, from a very practical point of view, is that it empowers bad actors to be bad actors,” Mara Keisling, executive director of the National Center for Transgender Equality, told reporters.

The proposal would also eliminate protections based on sexual orientation and gender identity from several other health care regulations, like non-discrimination guidelines for the health care insurance marketplaces.

Does it affect only LGBTQ people?

The proposal goes beyond removing protections for the LGBTQ community and those who have had an abortion.

It appears to weaken other protections, such as those based on race or age, by limiting who must abide by the rules. The Trump proposal would scrap the Obama-era rule’s broad definition of which providers can be punished by federal health officials for discrimination, a complicated change critics have said could ease requirements for insurance companies, for instance, as well as the agency itself.

And the proposal erases many of the enforcement procedures outlined in the earlier rule, including its explicit ban on intimidation or retaliation. It also delegates to Severino, as the office’s director, full enforcement authority when it comes to things like opening investigations into complaints lodged under the non-discrimination rule.

Why did HHS decide to change the rule?

The Obama and Trump administrations have different opinions about whether a health care provider should be able to refuse service to patients because they are transgender or have had an abortion.

It all goes back to a section in the Affordable Care Act barring discrimination on the basis of race, color, national origin, age, disability or sex. President Barack Obama’s health officials said it is discrimination to treat someone differently based on gender identity or stereotypes.

It was the first time Americans who are transgender were protected from discrimination in health care.

But President Donald Trump’s health officials said that definition of sex discrimination misinterprets civil rights laws, particularly a religious freedom law used to shield providers who object to performing certain procedures, such as abortions, or treating certain patients because they conflict with their religious convictions.

“When Congress prohibited sex discrimination, it did so according to the plain meaning of the term, and we are making our regulations conform,” Severino said in a statement. “The American people want vigorous protection of civil rights and faithfulness to the text of the laws passed by their representatives.”

Much of what the Office for Civil Rights has done under Severino’s leadership is to emphasize and strengthen so-called conscience protections for health care providers, many of which existed well before Trump was sworn in. Last year, Severino unveiled a Conscience and Religious Freedom Division, and his office recently finalized another rule detailing those protections and their enforcement.

The office also said the proposed rule would save about $3.6 billion over five years. Most of that would come from eliminating requirements for providers to post notices about discrimination, as well as other measures that cater to those with disabilities and limited English proficiency.

The rule would also save providers money that might instead be spent handling grievances from those no longer protected.

The office “considers this a benefit of the rule,” said Katie Keith, co-founder of Out2Enroll, an organization that helps the LGBTQ community obtain health insurance. “Organizations will have lower labor costs and lower litigation costs because they will no longer have to process grievances or defend against lawsuits brought by transgender people.”

Why does this matter?

Research shows the LGBTQ community faces greater health challenges and higher rates of illness than other groups, making access to equitable treatment in health care all the more important.

Discrimination, from the misuse of pronouns to denials of care, is “commonplace” for transgender patients, according to a 2011 report by advocacy groups. The report found that 28% of the 6,450 transgender and gender non-conforming people interviewed said they had experienced verbal harassment in a health care setting, while 19% said they had been refused care due to their gender identity.

The report said 28% had postponed seeking medical attention when they were sick or injured because of discrimination.

Critics fear the rule would muddy the waters, giving patients less clarity on what is and is not permissible and how to get help when they have been the victims of discrimination.

Jocelyn Samuels, the Obama administration official who oversaw the implementation of the Obama-era rule, said that for now, even though the Trump administration’s HHS will not pursue complaints against those providers, Americans still have the right to challenge this treatment in court. Multiple courts have said the prohibition on sex discrimination includes gender identity.

“The administration should be in the business of expanding access to health care and health coverage,” Samuels told reporters on a conference call after the rule’s release. “And my fear is that this rule does just the opposite.”

Kaiser Health News (KHN) is a national health policy news service. It is an editorially independent program of the Henry J. Kaiser Family Foundation which is not affiliated with Kaiser Permanente.

EDGI: EPA didn't provide enough information for true public comment on WOTUS rule

On February 14th, the EPA and Engineers Corps published a new rule changing the definition of “waters of the United States.” The public could comment on the new rule until April 15th. However, it’s unclear whether the public had access to enough information to make a truly informed comment.

In its public comment, the Environmental Data & Governance Initiative (EDGI) argued the EPA did not provide sufficient resources to allow for authentic public comment on the new rule.

According to EDGI, resources previously available on the EPA website containing information on the relevant underlying science were later removed. “The EPA’s website is intended to be a trusted and easily accessible resource,” EDGI wrote. “However, beginning in May 2017, resources that the EPA formerly posted about aquatic ecosystems and the Clean Water Act itself were made less accessible, and in many cases, removed entirely.” Removed resources included introductory materials on aquatic systems, links to research reviews that support the current Rule, and pages in Spanish.

The Clean Water Act only protects waters designated “waters of the United States” (WOTUS). Under the new rule, many wetlands would not be included as WOTUS, and thus not subject to Clean Water Act protections. According to the U.S. Geological Survey, an estimated 18% of streams and 51% of wetlands would not be protected under the new rule.

“The two most important things the public needs in order to provide informed comments about the proposed WOTUS redefinition are a clear comparison of which streams and wetlands are protected under the 2015 Clean Water Rule versus which would be protected under the new Rule, and the scientific evidence supporting that change,” EDGI wrote. “Neither of these needed resources are provided.”

You can read EDGI’s full comment here.

PHLW hosts comment writing party at Northeastern Law

Last week, Public Health Law Watch hosted a comment writing party at Northeastern Law, with help from the Center for Health Policy and Law and How To Get It Done.

Eighteen students showed up to write comments regarding the USDA’s proposed SNAP rule that will likely take food stamps away from over 700,000 people.

We provided students with fact sheets, comment templates, copies of the proposed rule, and of course, snacks.

After the success of this event, PHLW is considering hosting multi-campus comment writing parties in the future. Contact us if your law school or organization would be interested in participating!

Public Comment: HHS Proposed Revisions to Title X Funding Regulations

Yesterday, along with the George Consortium and in collaboration with the Center for Health Policy and Law at Northeastern University School of Law, we submitted public comments to the Dept. of Health and Human Services (HHS) regarding proposed revisions to Title X Regulations. We offer a reprint of the comments we submitted. 

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Office of the Assistant Secretary for Health
Office of Population Affairs
Attention: Family Planning
U.S. Department of Health and Human Services
Hubert H. Humphrey Building, Room 716G
200 Independence Avenue SW
Washington, DC 20201

Re: Docket Number: HHS-OS-2018-0008, RIN: 0937-ZA00

Public Comment on Proposal to Revise Title X Regulations, Compliance with Statutory Program Integrity Requirements

Dear Assistant Secretary ADM Brett Giroir, MD:

The Center for Health Policy and Law at Northeastern University School of Law[1] and the Public Health Law Watch (PHLW)[2] appreciate the opportunity to make comments on the proposed Department of Health and Human Services (HHS) revisions to 45 CFR Part 59, “Compliance With Statutory Program Integrity Requirements.” The Center for Health Policy and Law is a university center of excellence focused on providing a rich context for students and researchers interested in myriad health-related topics, including public health law, health and human rights, health governance, bioethics, and drug policy. PHLW is a project of the George Consortium, a nationwide network of public health law scholars, academics, experts, and practitioners. It should be noted that these comments have been prepared by the Center for Health Policy and Law and PHLW, but do not represent the view of Northeastern University School of Law, Northeastern University, or individuals affiliated with either the Center or PHLW.

We offer comments on the proposed regulations’ failure to provide for exemptions or protections for providers whose conscience dictates that they counsel and provide medically-appropriate information about abortion and abortion-related services.

These proposed regulations seek, among other things, to eliminate the current requirement that Title X grantees “offer pregnant women the opportunity to be provided information and counseling regarding… pregnancy termination.”[3] On page 25506,[4] the “supplementary information” section invokes “conscience protections” as one justification for eliminating that provision. Specifically, it reasons that this provision conflicts with statutory “conscience protections” shielding health care personnel from engaging in practices conflicting with their moral and religious values. The commentary posits that eliminating the requirement to give women the opportunity to get information about abortion would solve any potential clashes between that provision and conscience provisions.

This reasoning, however, assumes that moral and religious conviction protections only apply when invoked against abortion. But that is simply not true. Dr. Willie Parker, for example, describes his mission to provide women with abortions as a Christian imperative.[5] Refusing to do so, he reasons, would be akin to the biblical Samaritan who refused to help a fallen traveler. An interfaith coalition blesses clinics that provide abortion for upholding the values of autonomy.[6] The late Dr. George Tiller, who was murdered in his church by an anti-abortion extremist, described his work of providing abortions as “a ministry.”[7] Others view providing abortions as a moral duty[8] to provide needed care to women who need help.[9] Some providers and health care workers believe their conscience requires adherence to professional and medical ethics, which require health professionals to provide all relevant, medically-appropriate information to patients, including when patients ask for a full range of family planning and/or abortion-related options and referrals, and when medically-appropriate even in the absence of explicit requests for such information or referrals by the patient.[10]

These proposed regulations change not only disregard the interests and rights of providers and patients whose consciences support ensuring transparency around and access to information related to abortion and abortion-related services, referrals, and counseling, they also ignore the fact that federal law protects the conscience of such providers. On page 25512,[11] the supplementary information section invokes the Church Amendments (codified at 42 U.S.C. 300a-7)[12] by describing its discrimination protections for health care professionals who refuse to perform abortions.  The notice for proposed rulemaking, however, fails to include, even in its footnoted quote of the law,[13] the provisions in the Church Amendments that explicitly also protect the professionals who do perform abortions, as well as those who counsel and/or refer patients to abortion services.[14] The law equally protects those with “reluctance or willingness to counsel, suggest, recommend, assist, or in any way participate in the performance of abortions or sterilizations contrary to or consistent with the applicant’s religious beliefs or moral convictions.”[15] The law recognizes that “religious beliefs or moral convictions” are not homogenous and do not operate solely in one direction. To be consistent with this provision of the law, as well as with the Department’s proposed conscience regulations[16], the Proposed Title X regulations should allow for health care providers whose conscience compels them to provide patients with full and medically-relevant information about their reproductive health options, including by providing them with clear and useful referrals to abortion services and providers, even in instances when patients do not explicitly request such referrals.

Sincerely,

Center for Health Policy and Law
Northeastern University School of Law
lawhealth@northeastern.edu  

Public Health Law Watch
phlawwatch@northeastern.edu  

[1] Center for Health Policy and Law, https://www.northeastern.edu/law/health.

[2] Public Health Law Watch, https://www.publichealthlawwatch.org/.

[3] 42 CFR § 59.5(a)(5)(C) (2017).

[4] Compliance with Statutory Program Integrity Requirements, 83 Fed. Reg. 25502 (proposed June 1, 2018) (to be codified at 42 C.F.R. pt. 59).

[5] Stephanie Russell-Kraft, Reclaiming the Moral Imperative for Reproductive Choice. A Q&A with Dr. Willie Parker., The Progressive (Apr. 11, 2017), http://progressive.org/dispatches/reclaiming-the-moral-imperative-for-reproductive-choice.

[6] Caroline Kent, The Religious Coalition Blessing Abortion Clinics Across America, Broadly (May 10, 2018, 10:15 AM), https://broadly.vice.com/en_us/article/a3azz4/religious-coalition-reproductive-choice-abortion-clinic-blessing.

[7] Carole Joffe, Working with Dr. Tiller: Staff Recollections of Women’s Health Care Services of Wichita, 43 Persp. On Sexual And Reprod. Health 199-204 (2011).

[8] Elizabeth Reiner Platt, Many Doctors are Motivated by Their Moral and Religious Beliefs to Provide Abortions. Why Doesn’t HHS Care About Their Consciences?, Public Rights/Private Conscience Project Blog (Mar. 29, 2018), , http://blogs.law.columbia.edu/publicrightsprivateconscience/2018/03/29/hhsconscience/.

[9] Holly Fernandez Lynch & Ronit Y. Stahl, Protecting Conscientious Providers of Health Care, N.Y. Times, (Jan. 26, 2018), https://www.nytimes.com/2018/01/26/opinion/protecting-conscientious-providers-of-health-care.html.

[10] See American Medical Association, Physician Exercise of Conscience, AMA Principles of Medical Ethics, I, II, IV, VI, VIII, IX (2016), https://www.ama-assn.org/delivering-care/ama-principles-medical-ethics. See also American Academy of Physician Assistants, Guidelines for Ethical Conduct for the PA Profession (2013), https://www.aapa.org/wp-content/uploads/2017/02/16-EthicalConduct.pdf .

[11] Compliance with Statutory Program Integrity Requirements, supra note 4.

[12] See 42 U.S.C. §300a-7 (2016).

[13] Compliance with Statutory Program Integrity Requirements, supra note 4.

[14] See 42 U.S.C. §300a-7(c) and (e). See supra note 12.

[15] Id.

[16] Protecting Statutory Conscience Rights in Health Care; Delegations of Authority, 83 Fed. Reg. 3880 (proposed Jan. 26, 2018) (to be codified at 45 C.F.R. pt. 88).

New Dangers For Immigrants and the Health Care System [from Health Affairs Blog]

PHLW's Wendy E. Parmet and Elisabeth J. Ryan co-authored an article posted on the Health Affairs Blog about the potential changes to the definition of "public charge" and how that will negatively impact health care and the health care system. 

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New Dangers For Immigrants And The Health Care System

By Wendy E. Parmet and Elisabeth Ryan

The Trump administration’s crackdown on immigrants may soon create new perils for the health care system if a set of proposed regulations by the Department of Homeland Security (DHS), leaked last month to the Washington Post, are promulgated. The regulations would dramatically expand the definition of “public charge,” a criteria used in immigration law to determine both admissibility to and deportability from the United States. As a result, many immigrants, including many low wage health care workers, may be deterred from using publicly-funded health care benefits to which they and their dependents, including their citizen children, are legally entitled.

The Immigration and Nationalization Act requires most non-nationals (other than refugees, asylees, and certain other protected classes) who seek a visa to show that they are not likely to become a “public charge,” that is, someone dependent on public benefits. Once they are in the United States, most immigrants must make a similar showing if they seek a change in status, for example, if they apply for a green card. In limited circumstances, even green card holders may be deported for becoming a public charge.

An Expanded Definition Of ‘Public Charge’

Under long-standing policy, the use of publicly funded health care benefits (other than long term care) did not render an immigrant a public charge. In January however, the State Department issued a revised Foreign Affairs Manual, used by the consular offices in reviewing visa requests, which expanded the definition of public charge to include consideration of health benefits. The proposed DHS regulations would apply that approach within the United States, treating the use of Medicaid, the Children’s Health Insurance Program (CHIP), the Affordable Care Act (ACA) subsidies, and even benefits wholly funded by the states—but not Medicare—as a factor in determining whether an immigrant had been or would become a public charge. An immigrant could also be found to be a public charge if his or her dependents, including citizen children, used Medicaid or CHIP.

The implications of this potential change for patient care are significant. Non-citizen immigrants are already far less likely than citizens to have health insurance. In part, this is due to the fact that undocumented immigrants are ineligible to participate in the ACA’s exchanges or to receive federally funded health insurance (except for emergency Medicaid). Current law also denies most lawfully present immigrants from receiving Medicaid or CHIP for the first five years they have that status. With less access to insurance, it’s not surprising that immigrants are less likely than citizens to have a usual source of care, or preventive services.

Since the Trump administration took office, there have been widespread anecdotal reports that many immigrants have stopped showing up for their medical appointments. Undoubtedly some of this is due to the general climate of fear created by enhanced enforcement actions, which is especially frightening to those who are undocumented, as well as their families. But advocates also believe that a draft leaked in February 2017 of a proposed executive order expanding the definition of public charge led many immigrants to stay away from the health care system. In response, advocates and providers have tried to reassure immigrants that they should continue getting needed care.

Potential Consequences

If enacted, the proposed regulations will undermine that message, causing more immigrants to forgo needed care, meaning that easily treatable health conditions will go untreated until they become worse, and pregnant women will lack prenatal care. In addition, with immigrants afraid to access coverage for which they are eligible, hospitals and other safety net providers will be forced to bear more unreimbursed costs. The regulations may also create troubling new tensions between immigrant patients and their providers. For example, consider the possible predicament of a legal immigrant who gives birth to a child who needs neo-natal intensive care. By virtue of her birth, the child would be an American citizen and eligible for Medicaid, even if the mother was not eligible, as a result of her immigration status. Today, the hospital would likely work with the mother to enroll the child in Medicaid, so that the hospital could be paid for the child’s treatment. But with the new regulations in place, the mother might fear that enrolling her child in Medicaid would adversely affect her ability to get a green card and stay in the United States with her child. As a result, the mother’s interest and the hospital’s would be in conflict. Situations like this will likely arise every day, as patients fear enrolling in insurance to which they are entitled.

The regulations may also cause problems for many health care workers. While immigrants make up about 8 percent of the overall American workforce, they constitute 16 percent of the health care work force. Most non-citizen physicians and registered nurses receive health insurance through work, and will not be significantly affected by the proposed regulations. However, 22 percent of low skilled jobs in the health care sector, including nursing home workers and personal attendants, are filled by immigrants, many of whom lack access to employer-provided insurance.

For example, 25 percent of the home health aide workforce is non-United States born and one-third of home health aides rely on publicly-funded programs, including Medicaid and the ACA’s premium tax credits for insurance. If they avoid such programs for fear of becoming a public charge, they are likely to be uninsured, and unable to receive necessary care. That is likely to affect their ability to stay healthy and be productive workers. Making matters worse, the expanded definition of public charge will likely make it harder for low-skilled immigrants, including those who would otherwise work in the health care sector, to enter or stay in the country.  

The Administration defends the proposed regulations on the theory that they will advance self-sufficiency among immigrants. Self-sufficiency is an articulated goal in our immigration laws. But immigration law also establishes that many classes of immigrants are qualified for and entitled to federally-funded health benefits. So do many of our health laws, including the ACA and the laws authorizing CHIP. These laws reflect the realization that self-sufficiency with respect to health care is unrealistic. When it comes to health care, very few people are truly self-sufficient. Almost everyone needs insurance, and even the forms of insurance that the regulations favor depend upon public’s support. For example, employer-provided insurance receives preferential tax treatment, and Medicare is financed in part from general tax funds. And all but the very wealthy can find themselves relying on Medicaid or other public programs if a serious accident or disability befalls them.

Not only is self-sufficiency in health care unrealistic, it makes for bad health policy. The proposed regulations may be aimed primarily at keeping out unskilled workers, but by deterring taxpaying immigrants from accessing necessary care, they will spread costs throughout the health care system, add to health-related work losses, and harm the health of children and families.

There are still many steps before some version of the proposed regulations become law. The proposal is currently before the Office of Management and Budget, which could demand changes. It would then need to be published in the Federal Register for public comment. Should that happen, it is imperative that those who care about patients and the health care system weigh in, lest the Administration’s war against immigrants becomes a war against the American health care system.

Public Health Law Watch Comments on HHS Regulation Proposal: Protecting Statutory Conscience Rights

Public Health Law Watch, joined by our friends at the Public Health Law Center, submitted official comments to the U.S. Department of Health and Human Services proposed amendments to 45 CFR 88, "Protecting Statutory Conscience Rights; Delegations of Authority." Based on our combined expertise in public health law and policy, we offered comments on five main issues: (1) the lack of evidence that these rule revisions are necessary; (2) the absence of consideration for patients who face refusal of care; (3) the potentially dangerous expansion of existing definitions around “conscience protections;” (4) the potential harm these rules will cause for the LGBTQ population; and (5) the detriment these proposals would cause to reproductive health and rights.

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U.S. Department of Health and Human Services

Office for Civil Rights

RIN 0945-ZA03Docket

HHS-OCR-2018-0002

Public Health Law Watch (PHLW) and the Public Health Law Center appreciate the opportunity to make comments on the proposed Department of Health and Human Services (HHS) revisions to 45 CFR Part 88, “Protecting Statutory Conscience Rights; Delegations of Authority.” PHLW is a project of the George Consortium, a nationwide network of public health law scholars, experts, and practitioners.  The Public Health Law Center is nonprofit affiliate of the Mitchell Hamline School of Law, and a leading center of expertise in the use of law to prevent chronic disease.  The Center’s team of lawyers, law students, policy analysts and graduate students helps health leaders nationwide create communities where everyone can be healthy, with a focus on promoting healthy eating, encouraging physical activity, reducing the use of tobacco products, supporting health equity, and addressing cross-cutting legal issues that affect the nation’s health. Based on our combined expertise in public health law and policy, we offer the following comments on five main issues: (1) the lack of evidence that these rule revisions are necessary; (2) the absence of consideration for patients who face refusal of care; (3) the potentially dangerous expansion of existing definitions around “conscience protections;” (4) the potential harm these rules will cause for the LGBTQ population; and (5) the detriment these proposals would cause to reproductive health and rights.

First, we question the need for these regulatory revisions. As laid out in the Supplementary Information accompanying the proposed regulations, federal law already contains a plethora of provisions that protect individuals who invoke a religious objection to providing certain types of care, including abortion and assisted suicide. Yet, that information contained scant evidence that a pervasive discriminatory environment towards individuals and institutions who invoke these protections actually exists.  Rather, while the evidence provided describes an uptick in “conscience” complaints since the election of President Trump in late 2016, a total of only 44 complaints have been made since 2008. That represents less than 0.2% of the estimated 25,000 complaints that the HHS Office of Civil Rights (OCR) receives every year. Most of the remaining claimed support in the accompanying information is based solely on anecdotal commentary rather quantifiable data. Expanding these existing protections also risks directly conflicting with numerous professional standards, including the American Medical Association acknowledgement that conscience protections are not unlimited and that physicians “are expected to provide care in emergencies, honor patients’ informed decisions to refuse life-sustaining treatment, and respect basic civil liberties and not discriminate against individuals in deciding whether to enter into a professional relationship with a new patient.”  The current version of 45 CFR Part 88 is fully adequate to properly address existing and potential complaints about conscience protection violations. HHS can also fully institute its stated goals of ensuring “knowledge, compliance, and enforcement” of existing conscience protections via administrative means that do not require revising and expanding the current regulations.

Second, we are concerned that the regulations contain no protections for patients who face denial of care when health care providers and entities invoke these “conscience protections.”  By leaving patient consideration out, these regulations not only devalue those patients as individuals, but also potentially put their lives at risk. We have no way to know exactly how many times such “conscience protections” have been invoked or the extent of harm caused, but we do know that providers have, for example, refused to inseminate a woman because of her sexual orientation, refused to help a profusely bleeding pregnant woman because the fetus would not survive the procedure necessary to save her life, and refused to transport a pregnant woman by ambulance to a clinic that provided abortions. As the American Academy of Family Physicians has emphasized, “There is a distinct difference between declining to participate in a procedure versus denying access to care to an individual patient. The former is a protected right, the latter is an unacceptable shirking of our basic responsibility to care for our patients and contrary to the key underpinnings of the Code of Medical Ethics.”  Even if OCR prioritizes “conscience protections” of the health care providers and entities, the regulations also need to adequately protect the health and lives of the patients affected when such conscience protections are invoked. Further, the regulations are focused solely on health care providers and entities that refuse to provide certain types of care, yet fail to protect health care workers who view providing services like abortion as moral imperatives and yet face constant barriers and little consideration for their views.

Third, though the regulations are intended to enforce the “conscience protection” provisions in federal law, several of the proposed definitions in section 88.2 are so wide as to significantly expand existing law. We are particularly alarmed about the broad proposed definition of the term “referral or refer for.” While some of the existing provisions include a right for health care workers not to provide a “referral” for a service they have a religious or moral objection to, this definition of referral includes “the provision of any information…by any method… that could provide any assistance in a person obtaining….a particular health care service, activity, or procedure[.]” (emphasis added). This expansive definition conceivably allows a health care provider to not only refuse to provide a direct referral for care, but also to present the health care services he or she is willing to perform as the only medical options available to the patient. This could deprive a patient of the ability to make a decision with informed consent and leave them unaware that they can seek alternative and appropriate care from another provider. Again, these regulations provide no recourse to a patient harmed by this situation; rather, the regulations consider only the provider.

Compounding the concern about the broad definition of “refer,” the terms “workforce” and “assist” also have definitions that include activities, omissions, and persons far beyond the scope of those already protected under federal law. “Workforce” includes not only health care entity employees and contractors but also includes unpaid volunteers. “Assist in the performance” means “to participate in any program or activity with an articulable connection to a…” procedure, activity, or program. This explicitly includes, but is not limited to, “counseling, referral, training, and other arrangements….” These exceptionally broad definitions expand the scope of those who can invoke “conscience protections” beyond those originally envisioned in many of the federal provisions at issue. By allowing such a broad population of individuals to invoke “conscience protections” in such a wide range of situations, the care of patients is further diminished. This particularly puts at risk the health of patients in areas with few existing resources; low-income U.S. residents are already more likely to live in areas with fewer physicians and fewer hospitals and to have significantly poorer health overall. Residents in rural and farm communities also face similar barriers to access and health disparities.  The regulations should ensure adherence to the federal laws so that they apply narrowly and therefore minimize the impact on patient care.

Fourth, we are deeply concerned that these regulations particularly imperil care of the LGBTQ population. Health care already has a long history of anti-LGBTQ discrimination, such as classification of homosexuality as a psychiatric disorder and “treatment” that included electroshocks and “conversion” therapy. Partially as a result of this harm, LGBTQ populations have numerous health disparities, including higher rates of HIV, suicidal ideation and attempts, and violence victimization. They face frequent discrimination in health care contexts and these regulations would only enhance that discrimination by allowing a health care worker to raise a “moral objection” to, for example, homosexuality in general or to same-sex marriage. The objection could conceivably even be invoked to refuse treatment to children who have same-sex parents. Within the LGBTQ community, the transgender population is particularly at risk under these regulations. Absolutely no evidence exists that health care providers are being forced, for example, “to perform gender-affirming surgeries against their will…but what is happening every day, is transgender patients are being denied every kind of medical care you can think of.” A full 22% of transgender people in America already avoid doctors and medical care due to fear of discrimination and 31% have no access to regular health care at all. Those numbers are already alarming in the context of public health; these regulations risk leading to even wider denial of care, which would only increase that crisis.

Finally, the health care services explicitly targeted most often by these regulations (and by existing federal law) are those involving reproduction. In fact, the regulations often seem to be directly intended to “undermine existing legal and ethical protections for patients’ access to sexual and reproductive health information and services, and other critical care.” Many of the existing federal provisions explicitly allow providers and entities to invoke conscience protections in relation to directly providing abortions. But conscience protections have also been invoked to refuse access to emergency contraception for rape victims and to refuse to perform medically necessary procedures to save a woman’s life. The United States already has the worst rate of maternal deaths in the developed world, and this issue is further compounded by significant disparities: black mothers die at a rate 3-4 times more often than white mothers. To allow health care providers to invoke conscience protections to lifesaving reproductive health care even as a woman dies will escalate already unacceptably high rates. Further, these regulations also target – according to the supplementary information provided - laws requiring insurance coverage of reproductive health services, public notice requirements for “crisis pregnancy centers,” and attempts to require hospitals and healthcare professionals to provide abortion care when a woman’s life is endangered. These provisions go well beyond what the federal law currently covers, dangerously encroaching not only on a constitutionally protected right to reproductive health care but also on the very lives of women as patients. 

While protecting religious convictions has indeed been a long-respected – though never unlimited - right in the United States, HHS’s proposed regulations prioritize expansion provider protections without adequate consideration for how they endanger the health and lives of already vulnerable patient populations. We urge HHS not to adopt these proposed regulations.

Sincerely,

PHLW and PHLC

Public Health Law Watch

A project of the George Consortium

Publichealthlawwatch.org

Public Health Law Center

Publichealthlawcenter.org

Of Mosquitoes and “Moral Convictions”: How Rolling Back the Affordable Care Act’s Contraceptive Mandate Jeopardizes Women’s and Children’s Health

By Linda C. Fentiman

December 5 is the deadline to submit comments on the Trump Administration's recent action to gut the Affordable Care Act’s contraceptive mandate, which requires employer-sponsored health plans to ensure women's access to free, effective contraception.  This decision, announced in October in two Interim Final Rules, threatens serious harm to American children, because of the risk that women who lack access to contraception will become pregnant, contract Zika, and unwittingly transmit the virus to their developing fetus.  Since 2015, as an exponentially expanding Zika epidemic swept across Latin America, the United States, and its territories, thousands of children around the globe have been born with microcephaly.  On the U.S. mainland alone, almost 100 children have been diagnosed with microcephaly or other Zika-associated birth defects.   In Florida, the Department of Health has recently reported a new, sexually transmitted, case of Zika in Miami-Dade County.  In 2017 alone, 225 cases of Zika infection were confirmed in Florida; 119 are pregnant women, and three infants have been born with congenital Zika syndrome.  New York City, more than 400 pregnant women have been diagnosed with Zika since January 2016 and at least 20 infants have been born with microcephaly or other Zika-associated birth defects.

             The World Health Organization, Centers for Disease Control (CDC), and other health agencies have scrambled to reduce Zika’s threat by controlling the mosquito population and minimizing the risk of sexual transmission of Zika.  The CDC have been particularly outspoken, urging women of reproductive age to consider Zika’s risks to a developing fetus when deciding whether to travel to a Zika-affected area and, indeed, whether to become pregnant at all.

    In the face of such a dangerous disease, the Trump Administration’s drastic action to limit contraceptive access is both short-sighted and flawed legally.  The Administration announced two new regulations in October authorizing expanded exemptions and accommodations for employers, universities, and other health plan sponsors who wished to deny women free access to FDA-approved contraception, based on the plan sponsor’s religious beliefs or “moral convictions” (82 Fed. Reg.47658 and 82 Fed. Reg. 47838).   No exemption or accommodation was provided for plan sponsors seeking to opt out of any other health care service.  These new rules make it quite likely that many, especially poor and middle-income, women, will be denied access to effective contraception.  While the Fact Sheet accompanying the regulations states that low-income women whose employers opt out may seek contraceptive care through community health centers it conveniently ignores the fact that pending Republican legislation seeks to dramatically reduce federal funding for family planning services, including contraception, and that Republican efforts to repeal the Affordable Care Act would have authorized states to deny Medicaid recipients coverage for such services.

            With infectious diseases like Zika, citizens expect government to take direct steps to minimize the chance of disease transmission and to advise them about how to protect themselves.  Those most at risk for contracting the Zika virus are, as usual, the poor, who live in substandard housing that fails to protect them from mosquitoes and lack financial and other resources to access effective healthcare, including contraception and abortion.  Further, in states like Florida and Texas, even women and girls with financial means are frequently prevented from obtaining the full range of reproductive health care by restrictive federal and state laws governing access to contraception and abortion.

Recent natural disasters compound the problem. Puerto Rico provides a striking example of the intersection of legal and economic barriers; similar problems exist in Florida and Texas.  In Puerto Rico, two-thirds of all pregnancies are unintended; recent rates in Florida and Texas were 58% and 56%, respectively. Like their counterparts on the mainland, many Puerto Rican women, both married and single, want effective contraception, especially long-acting reversible contraception (LARC), such as IUDS and hormonal implants, which prevent pregnancy most effectively.  However, until the ACA contraceptive mandate became law, LARC was out of reach for almost all middle-class and poor women because of its higher upfront costs. 

Today, Puerto Rican women of all economic strata face significant hurdles in controlling mosquitoes and accessing healthcare, due to Hurricane Maria’s massive destruction of island infrastructure.  Yet even before the hurricane struck, women living in Puerto Rico were at high risk of contracting Zika and of being unable to plan for the birth of a healthy child.  Since December 2015 more than 34,000 people have been infected with Zika in Puerto Rico, more than 3,300 of them pregnant women. Nearly 150 infants have been diagnosed with serious Zika-associated birth defects.

  Officials from the CDC and Puerto Rico's Department of Health have worked over the last two years to increase public awareness of the risks posed by Zika, expand access to effective contraception, and minimize Zika transmission to pregnant women.  However, since Hurricane Maria, efforts to combat Zika have largely stalled, as both federal and Puerto Rican government officials have focused on other pressing needs - food, safe drinking water, electricity, and other infrastructure repair.

In the face of recent natural disasters, the Trump Administration’s decision to gut access to contraceptive coverage threatens a public health emergency of immense proportion, risking the health of vulnerable women and children. At the very moment that women in Florida, Texas, Puerto Rico, and the U.S. Virgin Islands are in the greatest need of government assistance due to devastating hurricanes, the Administration has erected major barriers to contraception and effective family planning, limiting the ability of women and their families to make informed decisions about the risks of bringing a potentially disabled child into the world.  This directly contravenes the Affordable Care Act’s command that “the Secretary of Health and Human Services shall not promulgate any regulation that-- (1) creates any unreasonable barriers to the ability of individuals to obtain appropriate medical care; or (2) impedes timely access to health care services….” (42 U.S.C.A. § 18114).

While the Administration asserts that its new contraceptive coverage policy is necessary to preserve the religious freedom and moral convictions of employers and other health plan sponsors, its promulgation of two Interim Final Rules that limit only women’s healthcare access displays an utter disregard for the constitutional guarantees of equal protection, due process, and personal privacy.  Finally, the decision to publish these controversial regulations as Interim Final Rules, with no opportunity for public notice and comment before they go into effect, contravenes the essential requirements of agency rule-making in a democracy. 

Everyone committed to gender equity, access to preventative health care, and protecting the public from infectious diseases should consider commenting on the Interim Final Rules before the December 5 deadline.  Here is the link:  https://www.regulations.gov/comment?D=CMS-2014-0115-13773