The federal government will begin enforcing protections for LGBT Americans in health care again, reversing a ban put in place by the Trump administration, the Health and Human Services Department said Monday.
The decision to do so was made in light of the Supreme Court’s finding in Bostock v. Clayton County, which held that LGBT people are protected from discrimination under Title VII of the Civil Rights Act of 1964.
“The Supreme Court has made clear that people have a right not to be discriminated against on the basis of sex and receive equal treatment under the law, no matter their gender identity or sexual orientation,” HHS Secretary Xavier Becerra said in a statement. “Fear of discrimination can lead individuals to forgo care, which can have serious negative health consequences. It is the position of the Department of Health and Human Services that everyone-including LGBTQ people-should be able to access health care, free from discrimination or interference, period.”
Section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability by entities that primarily provide health care and receive federal funding. This notice says that the Biden administration will enforce it as the law was initially intended.
All people need access to health-care services to fix a broken bone, protect their heart health, and screen for cancer risk,” HHS Assistant Secretary for Health Rachel Levine said in a statement. “No one should be discriminated against when seeking medical services because of who they are.”
The majority of Americans, about 156 million people, get their insurance through their employers. Most employers rely on health insurance companies to process their claims and administer their plans as a third-party administrator, said Matthew Cortland, a disability rights attorney policy director at the health-care advocacy organization Be a Hero Fund
However, the question of how it applies to insurers has been a conflict over the past five years.
The Obama administration issued a rule in 2016 that said those protections applied to employer-sponsored plans that relied on insurance companies receiving federal funds as a third-party administrator, Katie Keith, a health-care policy research professor at Georgetown University, said.
The 2016 rule was “clearly intended” to reach the third-party administrators of the employer-sponsored plans, Cortland said. However, the employer-sponsored plan insurance industry made clear it didn’t want the nondiscrimination law to apply to third-party administrators, and the 2020 Trump-era rule reversed that.
The Trump-era regulation allowed health-care workers, hospitals, and insurance companies that receive federal funding to refuse to provide or cover any care for LGBT Americans.
The 2020 rule says that health insurers aren’t bound by the ACA’s nondiscrimination provisions because they don’t provide health care, Wayne Turner, a senior attorney at the National Health Law Program, said.
The two previous regulations are still tied up in lawsuits, and this notice is likely to follow the same fate.
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