By DAN DIAMOND
The Trump administration is preparing to roll back protections for transgender patients while empowering health care workers to refuse care based on religious objections, according to three officials with knowledge of the pending regulations.
The long-expected rules have alarmed patient advocates and public health groups, which have warned the health department that the rules could harm vulnerable populations’ access to care. Meanwhile, the rules have been eagerly anticipated by religious-rights groups and conservative states that have lobbied for the changes.
The controversial rules — which the Trump administration has been scrutinizing for more than a year to prepare for expected legal challenges — have been closely guarded inside the administration, following several media reports on the efforts that sparked backlash and complicated officials’ strategy. Officials say the two health department rules are now expected within the next 10 days.
One rule would replace an Obama administration policy extending nondiscrimination protections to transgender patients, which have been blocked in court. A second rule would finalize broad protections for health workers who cite religious or moral objections to providing services such as abortion or contraception, a priority for Christian conservative groups allied with the administration.
The Obama administration issued transgender patient protections as part of a rule enforcing Obamacare’s Section 1557 provision banning discrimination in health care based on sex, but they were halted in 2016 by a Texas federal judge who found Congress didn’t intend to protect gender identity. The Justice Department this month told the judge it agreed with the ruling and signaled that the administration would soon issue a replacement rule.
HHS declined to comment on the forthcoming rules, citing ongoing litigation and the confidential rulemaking process. HHS officials have said the heightened conscience protections are necessary because religious discrimination in health care is significant and overlooked.
“HHS is committed to fully and vigorously enforcing all of the civil rights laws entrusted to us by Congress, to ensure that people are not subject to unlawful discrimination in HHS programs and in the provision of health and human services,” said HHS spokesperson Caitlin Oakley.
Officials told POLITICO the forthcoming conscience regulations build on an administration proposal from last year, but they declined to offer more details. That proposal would give HHS “a lot more authority and power” to effectively remake and enforce existing conscience protections, said Katie Keith, a Georgetown University law professor who’s studied the regulations.
For instance, a medical school receiving federal funds could not deny admission to applicants who refuse to perform abortions; providers could not require staff to inform patients about services like sterilization procedures or advance directives rejecting end-of-life care, and doctors and nurses would gain further protections to refuse to provide services like vaccinations.
The forthcoming HHS nondiscrimination rules are the latest example of President Donald Trump violating a campaign pledge to protect the LGBTQ community, advocates for transgender people say. The administration’s ban on transgender troops took effect just weeks ago, and the health department reportedly tried to effectively eliminate the federal definition of “transgender.”
The National Center for Transgender Equality and other advocacy organizations believe the rules will make it easier for providers or insurers to refuse transition-related care based on religious beliefs. They also worry the rules could make it easier for providers to refuse routine care for patients based on their gender identity.
Transgender patients say they often face discrimination when seeking medication, check-ups or other routine procedures. The liberal-leaning Center for American Progress in 2018 obtained documents, through a Freedom of Information Act request, that the bulk of transgender patients’ complaints to HHS between 2012 and 2016 focused on discrimination when seeking general care, rather than being denied complex procedures like gender transitions.
The Obama-era anti-discrimination rule also sought to protect women who were seeking an abortion or had previously undergone one. Advocates expect the Trump administration’s rewrite will curtail those protections, based on what the Justice Department this month told the Texas judge overseeing the lawsuit against the rule.
Anticipating backlash over the provisions affecting transgender patients, the administration will emphasize that its overhaul of Obamacare’s anti-discrimination rules will reduce the industry’s regulatory burden and save billions of dollars in time and paperwork, officials said. For instance, they point out that insurers have sought to ease the rule’s requirement to publish most communications to patients in 15 languages.
The Trump administration also will argue that the new rules collectively strengthen religious liberty protections in health care, an administration priority that resulted in the creation of a conscience division within the HHS civil rights office last year.
That division, which is overseeing the upcoming rules, has quickly grown to at least 10 staff and contractors who include a mix of former Hill GOP staff and Christian conservatives. The Office for Civil Rights’ budget request last month sought a $1 million raise and six more staffers for the conscience division, even as it proposed cuts to other parts of the office that much more frequently respond to complaints.
Of the approximately 7,600 civil rights complaints HHS received in the fiscal year 2018, just 10 of those involved conscience rights protections that required a formal investigation, according to an analysis from the Center for American Progress. HHS said more than 700 conscience-related complaints from that year remain open.