HHS Denial of Care Rule FAQ

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On May 21, 2019, the Trump administration published in the Federal Register the final rule governing Protecting Statutory Conscience Rights in Health Care; Delegations of Authority. Or, more accurately, the Denial of Care Rule.

Q: What does the Denial of Care Rule do?

The Trump administration’s Denial of Care Rule invites health care workers to impose their religious beliefs on patients, arbitrarily deciding who receives care and who doesn’t. The Rule specifically targets reproductive health care for women, and gender-affirming care for transgender patients, but it invites religiously-motivated denials of health care to anyone. Virtually any health care worker is empowered to deny care – the intake coordinator at the emergency room, an orderly in the hospital, the pediatrician treating an infant, the surgeon in the OR, the nurse taking blood, or the EMT answering a call to someone’s home.

The Rule applies to medical facilities that receive certain types of federal funding through the U.S. Department of Health and Human Services (HHS), which includes most health care facilities across the country. The Rule has a particular impact on health care providers that serve the LGBT community because these facilities are disproportionately likely to receive vital federal funding through the Ryan White CARE Act for HIV treatment and prevention, and participate in public health research funded by the National Institutes of Health and the Centers for Disease Control and Prevention. The Rule threatens these facilities with loss of federal funding, including Medicaid and Medicare reimbursements, if they enforce their own nondiscrimination policies, and insist on patient care that meets medical standards of care and ethical requirements, rather than let their employees arbitrarily deny care to patients. The Rule contains no exception for medical emergencies. Moreover, the Rule would even allow objecting employees to refuse to refer patients to other providers where they might get treated.

Q: What is the purpose of the Rule?

The Rule purports to protect the conscience rights of health care providers, but its real aim is to circumvent anti-discrimination laws and policies and facilitate discrimination. The Rule’s intent is to intimidate health care facilities into doing away with reproductive and LGBTQ services, leaving millions without access to critical health care. The rule threatens health care providers who don’t comply and is so confusing and unworkable that facilities could stop providing certain care for fear of losing funding. This rule could debilitate health care systems across the country.

Q: Whom does the Rule target?

The Rule specifically targets reproductive health care for women, and gender-affirming care for transgender patients, but it invites religiously-motivated denials of health care to anyone . The Rule will have a particular impact on LGBT people and people living with HIV because the most draconian aspects of the Rule apply to facilities receiving federal funding through the Ryan White CARE Act for HIV treatment and prevention. It also will have a disparate impact on members of rural and disadvantaged communities with already limited access to health care resources. The Trump administration in fact acknowledges these likely impacts in the preamble to the Rule, but argues, without any evidence, that the Rule nevertheless is justified because more practitioners will enter the health care field (now that their ability to discriminate is protected).. In other words, the administration claims the Rule is a good thing, even though LGBT people and those in need of abortion care will suffer, because patients who don’t need abortion or gender-affirming care will have greater options as an increased number of discriminatory providers enter the field.

Q: Is this Rule necessary to protect freedom of religion so no one would be forced to perform a procedure that violates their religion?

No. There are already protections for the religious beliefs of medical professionals under federal law. These existing protections shield rights of conscience while ensuring that patients get the care they need. Under these protections, health care facilities can accommodate employees with religious objections while ensuring that patients receive the care they need. The new Rule disrupts these policies at the cost of patient care. Medical ethical requirements, standards of care, and accreditation requirements for hospitals currently prohibit discrimination against patients and require medical professionals to ensure that their patients get medically-necessary care. This Rule threatens to violate basic ethical rules and standards of care governing the medical profession.

Moreover, this Rule could grossly expand the ability of numerous individuals not directly involved in providing care to delay and reject patients. The reality is that LGBTQ people, women seeking reproductive health care, and people living with HIV already face frequent discrimination when seeking health care. The government should be protecting patients’ rights, not facilitating discrimination.

Q: How will the Rule impact the LGBT community?

For members of the LGBT community and people living with HIV, interactions with the health care system are already fraught. The Rule dramatically increases that tension.

LGBT people already are disproportionately likely to experience discrimination, hostility, and denials of care in health care settings. A majority of LGBT people report that they fear going to the doctor because of past experiences of hostility and bias in health care settings. Additionally, most LGBT people lack a provider whom they consider to be their personal doctor and often find themselves seeking medical care from a provider with whom they do not have a relationship. For some medical specialties, there are only a handful of providers in a given region who have the specialty necessary to treat a patient, and a discriminatory denial of care by one provider could make it practically impossible for an LGBT patient to receive the treatment at all. Consequently, LGBT patients are disproportionately likely to delay preventative screenings and necessary medical treatment and end up with more acute health problems and outcomes.

There are pervasive health disparities for LGBT people with respect to cancer, HIV, obesity, mental health, tobacco use, and more. In other words, LGBT people, who are disproportionately likely to need a wide range of routine medical care, already have reason to fear, and often do fear, negative consequences of “coming out” to health care providers about their sexual orientation, gender identity, and history of gender-affirming medical treatment. However, such information is vital for health care providers to know so that patients can receive all medically-necessary care. A patient who fails to disclose a same-sex sexual history may not be screened for HIV or other relevant infections or cancers, or prescribed preventative medications such as Pre-Exposure Prophylaxis (PrEP), which is extremely effective at preventing HIV transmission. A patient who fails to disclose their transgender status may not undergo medically-indicated tests or screenings (such as tests for cervical or breast cancer for some transgender men, or testicular or prostate cancer for some transgender women). 

This Rule erodes trust between patients and their providers, will result in denials of medically-necessary care, and will have a chilling impact on LGBT patients, encouraging them to remain in the closet when seeking medical care for fear of encountering discrimination, at the cost of their own health and public health. The Rule shows contempt for LGBT people and women in need of reproductive health care, and will result in dangerous consequences for patients’ health and long-lasting, negative effects on public health and the health care system.

Lambda Legal’s docket has multiple examples of LGBT people confronting religiously motivated discrimination and bias in accessing health care, including a lesbian couple denied infertility treatment at a women’s health clinic (see here), a gay man whose doctor refused to write him a medical prescription (see here) and a transgender man whose hospital refused to allow his surgeon to perform a routine hysterectomy (see here.) Lambda Legal has documented hundreds of other instances of discrimination, included in the comments on the proposed rule Lambda Legal submitted to HHS (see here).   

Q: What will the impact be on the health care system?

The Denial of Care Rule would be a public health catastrophe. The Rule is so broad, and the risks so great, that local health care facilities may feel compelled to stop providing contraception, abortion services or transition-related care in order to protect their funding. For many, these facilities are the providers of last resort and they are on the front lines in saving lives.

The Rule prohibits providers from asking potential employees about their religious or moral objections to certain procedures or to providing care to LGBT people. And, should employers discover that some employees do object to providing certain types of care, the employers are prevented from removing them from fields of practice. For example, the Rule prevents a hospital from removing a nurse who objects to abortion from an OB/GYN ward, or a nurse who refuses to respect patients’ gender identities from screening patients for HIV. The Rule permits objecting employees to veto proposed accommodations offered them by their employers. As a result, the rule will significantly erode the bound of trust between patients and providers that is critical for people getting appropriate, timely, necessary health care.

If mission-driven providers dedicating to serving the LGBT community are forced to accommodate staff that will mistreat LGBT or HIV+ patients and/or deny them care, then their entire reason for existing would be undermined and their mission fatally compromised. If an LGBT health center cannot be a safe haven for LGBT people, then adequate healthcare ceases to be possible for countless vulnerable patients.

Q: What happens next?

The Denial of Care Rule was published in the Federal Register on May 21, 2019, and will go into effect 60 days later, on July 20, 2019. Lambda Legal, Americans United for Separation of Church and State, and the Center for Reproductive Rights filed a lawsuit on May 28 in the U.S. District Court for the Northern District of California, in coordination with Santa Clara County, asking the court to block the rule before it takes effect. The lawsuit was filed on behalf of Trust Women Seattle, Hartford GYN, Whitman-Walker Health, Bradbury-Sullivan LGBT Community Center, Los Angeles LGBT Center, Medical Students for Choice, Center on Halsted, Mazzoni Center, GLMA, Association of Gay and Lesbian Psychiatrists, and five physicians.

Q: What does the lawsuit say?

The lawsuit argues that the Denial of Care Rule is unconstitutional because it advances specific religious beliefs in violation of the First Amendment; violates patients’ rights to privacy, liberty and equal dignity as guaranteed by the Fifth Amendment; and chills patients’ speech and expression in violation of the First Amendment, all to the detriment of patients’ health and well-being. The lawsuit also asserts that HHS violated the federal Administrative Procedures Act in creating the rule.