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A new proposal from the federal health department would prohibit discrimination on the basis of sexual orientation and gender identity among health-care providers that receive federal dollars. It also aims to cover pregnant women seeking health-care services, including abortions, Dan Diamond and I report. The language would allow people to file claims with the Health and Human Services Office of Civil Rights if they believed they had faced discrimination from a health-care provider based on their sexual orientation, gender identity or pregnancy.
But this likely isn’t the end of the battle over such language. Top Biden health officials, as well as experts, say they’re bracing for legal challenges over the proposed rule, which has previously been enmeshed in court battles. Opponents are likely to challenge the rule, arguing it’s an overreach and an inaccurate interpretation of the law.
The plan comes at an inflection point for such protections, as gender-related care and other services have increasingly become the target of state legislative battles and litigation across the country. Some who reviewed the rule say they’re still trying to unpack how it could intersect with state laws across the country.
“In terms of the federal purview, it really helps to provide a blanket protection for people based on their sexual orientation and gender identity,” said Jen Kates, a senior vice president at the Kaiser Family Foundation. “Will it be challenged in court? Probably.”
Rachel Levine, HHS assistant secretary for health:
This is especially key when it comes to providing services like gender-affirming care for trans youth. We need to lead with data and compassion, not stigmatization.— ADM Rachel Levine (@HHS_ASH) July 25, 2022
I wrote a recent op-ed on the public supporting medical science when they get the facts. https://t.co/oiucWySd0J
The proposed rule issued by the Department of Health and Human Services boosts a part of Obamacare known as Section 1557. The provision bars discrimination in health programs based on race, color, national origin, sex, age or disabilities.
In 2020, the Trump administration rolled back the Obama-era policy that protected transgender patients from discrimination — a move that received backlash from some health experts. LGBT advocates praised Biden’s efforts yesterday to broaden federal language to protect people seeking transition-related care, people with disabilities and others.
On the abortion front, the proposal seeks to clarify that discrimination on the basis of sex includes decisions regarding “pregnancy termination.” HHS also requested public input on the impact of the Supreme Court’s ruling overturning the constitutional right to an abortion on the anti-discrimination provisions — comments that health officials could then use to make changes to the final version of the rule.
Experts say they’re still parsing the proposed rule’s implications on the battle over rights to the procedure, as a wave 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.
But some conservative and religious groups contend the rule change would force providers to perform procedures against their religious beliefs. HHS officials said they sought to assuage some of those critiques, pointing to parts of the proposal that explicitly addressed protections for providers who raised conscience or religious objections to performing procedures, like abortions.
The proposal applies to Obamacare health plans, Medicaid and Medicare. But for the first time, the nondiscrimination provisions would also extend to Medicare Part B, which covers physicians’ visits and other outpatient care.
Doing so would fill a critical gap in anti-discrimination protections, ensuring the rules are “consistent and simple,” said Chiquita Brooks-LaSure, the Biden administration’s Medicare and Medicaid chief.
The Trump administration had also scaled back requirements that most health-care providers post information in 15 languages, as well as to make translation services available. The new proposal seeks to restore the language assistance services.
White House prescriptions
Biden administration weighs declaring monkeypox a health emergency
The Biden administration is wrestling over whether to declare the monkeypox outbreak a public health emergency, as it gears up to name a White House coordinator to oversee the country’s response, our colleague Dan Diamond reports.
A decision on the emergency declaration could come later this week, and potentially be tied to an announcement that about 800,000 additional vaccine doses will be distributed following completion of a review by the Food and Drug Administration.
But health officials are still split on whether the monkeypox emergency declaration is necessary. Some believe the designation would give the federal government authority to cut through red tape and collect data about the virus’s spread. Others argue the move is mostly symbolic and wouldn’t address vaccine shortages, treatment barriers and other challenges hindering the U.S. response.
Domestic politics is another complicating factor. Advocacy groups have called on the administration to declare emergencies for abortion and gun violence and climate change, igniting debate over which issues to prioritize. All the while, the administration continues to renew the designation also attached to opioids and the coronavirus, which expire every 90 days.
White House officials say the decision rests with HHS Secretary Xavier Becerra, who told CNN yesterday that his department is still debating the merits of an emergency declaration.
As for a monkeypox coordinator, the administration is considering people with expertise in epidemic response and government operations, Dan writes. This comes as Chief of Staff Ron Klain — who coordinated the U.S. response to Ebola during the Obama administration — as well as White House coronavirus czar Ashish Jha and infectious-disease expert Anthony Fauci have recently been drawn in to doing work on the monkeypox response.
More from Dan:
In the courts
Latest legal battle over the ACA begins
Oral arguments will begin today in a case that threatens one of the Affordable Care Act’s most popular provisions, which requires insurers and group health plans to cover more than 100 preventive health-care services at no cost to consumers.
The Obamacare benefit could be in for a rough ride — at least initially. The dispute is pending before U.S. District Judge Reed O’Connor, who once declared the ACA must be repealed entirely, though the Supreme Court didn't agree.
If eliminated, millions of Americans enrolled in ACA plans may face increased out-of-pocket health-care expenses for routine services like cancer screenings and vaccines. But any such ruling would surely be appealed.
Challengers in Kelley v. Becerra argue that the ACA’s requirement is unlawful because members of the three entities affiliated with HHS that determine which preventive services should be free haven’t been nominated by the president or confirmed by the Senate. In a separate claim, the lawsuit also contends that requiring coverage for HIV prevention drugs violates the Religious Freedom Restoration Act, according to the Commonwealth Fund, a health-care think tank.
The American Medical Association:
With an adverse ruling in Kelley v. Becerra, patients would lose access to vital preventive health care services, such as screenings for cancer, heart disease, obesity and diabetes, as well as well child visits & access to critical immunizations. https://t.co/dSxO0UyA1P— AMA (@AmerMedicalAssn) July 25, 2022
Senate Democrats wrestle with covid-19 absences
The centrist lawmaker is the latest in a long string of Democrats to be infected with the virus. Sens. Tina Smith (Minn.) and Thomas R. Carper (Del.) were sidelined last week, further complicating the party’s efforts to push several legislative priorities through an evenly split chamber before leaving town for August recess. Smith announced last night that she'd be back today.
Manchin’s absence this week is not likely to affect the timing of votes on the Senate floor. But if he's out into next week, it could upset plans by Democratic leadership to deliver on a long-awaited health-care package they’re attempting to pass without GOP votes.
- The health-care bill would empower Medicare to negotiate some drug prices and temporarily extend enhanced financial help to many Americans who buy insurance through state and federal exchanges. But to pass the measure, the party needs the support of every Senate Democrat.
Sen. Joe Manchin III (D-W.Va.):
This morning I tested positive for COVID-19. I am fully vaccinated and boosted and am experiencing mild symptoms. I will isolate and follow CDC guidelines as I continue to work remotely to serve West Virginians.— Senator Joe Manchin (@Sen_JoeManchin) July 25, 2022
Indiana abortion debate draws protesters, criticism from vice president
State lawmakers in Indiana kicked off a special legislative session yesterday to consider a bill that would ban nearly all abortions. The debate is one of the first held by Republican-led legislatures following the Supreme Court’s decision last month overturning Roe v. Wade, the Associated Press reports.
The session drew protesters to the Indiana Statehouse, and received sharp criticism from Vice President Harris, who denounced the effort during a meeting with Democratic lawmakers.
More from Harris:
Other abortion news:
- On tap today: Key Senate Democrats will announce an effort to pass legislation later this week via unanimous consent that guarantees the right to contraception. This follows passage of a companion bill in the House last Thursday.
- A man pleaded not guilty yesterday in Ohio to charges of raping a 10-year-old girl who traveled to Indiana for an abortion last month, in a case that quickly became a flashpoint in the national debate over the procedure, the Associated Press reports.
- In West Virginia: Gov. Jim Justice (R) asked lawmakers to “clarify and modernize” the state’s 150-year-old abortion ban — which has been blocked by the courts — amid a special legislative session that began yesterday. Justice’s office didn’t respond to requests for comment from The Health 202.
In other health news
- President Biden’s coronavirus symptoms have “almost completely resolved” after completing his fourth full day of the antiviral treatment Paxlovid, White House physician Kevin O’Connor wrote in a letter yesterday.
- The National Association of Manufacturers launched a six-figure ad campaign yesterday seeking to fight Democrats’ drug pricing legislation.
- D.C. public health officials will shift the city’s monkeypox vaccine strategy to give out first doses to those most at-risk instead of reserving shots for the second part of the two-shot regimen, The Post’s Jenna Portnoy reports.
Thanks for reading! See y'all tomorrow.