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Saturday, December 31, 2016

Here's what the temporary block on the federal health care nondiscrimination rule means

Today, a single judge ordered the Department of Health and Human Services to temporarily stop enforcing the federal health care nondiscrimination rule. The fight is nowhere near over, but many trans people and their loved ones might be concerned about what this preliminary decision means for them. Here's what the judge did and how it's likely to affect health care plans.
 
What did the court do in this case?
 
Section 1557 of the Affordable Care Act prohibits gender discrimination in federally-funded health activities, which includes most health insurers and health care providers, such as doctors and hospitals. In 2016 the Department of Health and Human Services (HHS)--after multiple comment periods and after considering comments from thousands of members of the public--published a regulation to help implement the law. (Read NCTE's FAQ on the 1557 final rule.)
 
Most judges, including several federal appeals courts, have agreed that federal laws like the Title IX education law and Section 1557 of the Affordable Care Act protect transgender people from discrimination. However, in this case a single judge in Texas ruled that HHS cannot enforce those protections anywhere in the country. The judge's order applies nationwide, but only to enforcement by HHS itself. The judge's order does not and cannot prevent transgender people from filing lawsuits alleging discrimination by health care providers or insurers.
 
I recently enrolled in a health plan for 2017, or I am planning to enroll in a health plan by January 31st. Will this ruling affect my plan?
 
Probably not. Health plans have already set their benefits for 2017, and can't change them once people are enrolled. Most plans in the state and federal marketplaces have eliminated transgender exclusions for 2017, and it is questionable whether most health plans would want to re-introduce exclusions even for future years, because they are not based on science and don't save money. Moreover, the ACA's underlying prohibition on discrimination is still in effect despite this preliminary ruling on HHS's implementing rules, as are numerous state laws prohibiting discrimination. NCTE will monitor how health plans are responding to the ruling.
 
I am on Medicare/Medicaid. Will this ruling affect my coverage?
 
Probably not. By law, Medicare and Medicaid must cover medically necessary care and cannot establish limits that are unreasonable and not based in science. Medicare already covers transition-related care on an case-by-case basis based on medical need, and over a dozen states have taken steps to clarify that they do not exclude transition-related care in their Medicaid programs. Again, it is questionable whether regional Medicare administrators or state Medicaid programs would would want to re-introduce transgender exclusions they have previously eliminated, because they are not based on science and don't save money. Moreover, the ACA's underlying prohibition on discrimination is still in effect despite this preliminary ruling on HHS's implementing rules. As long as this ruling is in place, it could dampen the momentum for additional states to eliminate exclusions, but these could still be subject to legal challenges. NCTE will monitor how states are responding to the ruling.
 
Does this mean I'm not protected from discrimination by hospitals and other health care providers?
 
No. The ACA's underlying prohibition on discrimination is still in effect despite this preliminary ruling on HHS's implementing rules. The ruling may limit HHS's efforts to investigate and resolve complaints of discrimination, however providers that discriminate are still subject to challenges in court. Moreover, numerous state and local laws, as well as national standards for hospital accreditation, also prohibit discrimination against transgender patients.
 
What can I do if I face discrimination by a health plan or provider?
 
The ruling may limit HHS's efforts to investigate and resolve complaints of discrimination, however providers that discriminate are still subject to lawsuits if they discriminate against transgender patients. Moreover, numerous state and local laws, as well as national standards for hospital accreditation, also prohibit discrimination against transgender patients. We encourage anyone who has experienced discrimination by a health plan or provider to contact an LGBT friendly legal organization for legal help.
 
Why is this important for transgender people?
 
Transgender people face serious barriers every day, both in accessing life-saving transition-related health care and in accessing any type of health care at all. In the 2015 US Transgender Survey, which surveyed nearly 28,000 transgender adults, one-third (33%) of those who saw a health care provider in the past year reported experiencing based on their transgender status during that year, incluing harassment, physical abuse, and being turned away by a provider. Nearly one-quarter of respondents (23%) reported avoiding health care when they were sick or injured in the last year because they feared discrimination. 
 
What happens if Congress repeals parts of Obamacare?
 

President-elect Trump and some Republicans in Congress want to repeal the the ACA entirely. Congressional Republicans' current plan is to repeal many core parts of the ACA, and to make the repeal subject to a year or more delay period--but without voting on anything to replace it. Any repeal can only be passed through the budget process, which requires fewer votes, but only allow for repealing budget-related items. This would leave some important protections, including the ACA's nondiscrimination protections, in place. However, repealing any part of the ACA is a bad idea; it could lead to 30 million people who got health insurance losing it, and many people would have their health care costs go up.

 
Again, none of this should affect coverage for 2017, and there are many reasons to expect that major health care providers and insurers will continue recent efforts to improve access to care for transgender patients, regardless of what Congress or the new adminstration do.

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