Brief Listing of Transgender Healthcare Regulations

RELATIVE TO ACA 2016: RULEMAKING

In May 2016, HHS released final regulations on healthcare discrimination, including transgender issues.

Trade press here
https://transequality.org/blog/hhs-issues-regulations-banning-trans-health-care-discrimination

Detailed FAQ here
http://www.transequality.org/sites/default/files/HHS-1557-FAQ.pdf

Actual 2016 final regulation here
https://www.federalregister.gov/documents/2016/05/18/2016-11458/nondiscrimination-in-health-programs-and-activities

81 FR 31376  (May 18, 2016; effective July 18, 2016)

This rulemaking was undertaken to implement ACA Section 1557; more here and here.  This section of the ACA is written in very brief and dry legalese and merely refers to nondiscrimination (in the ACA) on the grounds of other laws including the Civil Rights Act of 1964, etc.

RELATIVE TO ACA 2018: SCALING BACK PER JUDGE

In April 2018, HHS announced plans to scale back the impact of this regulation, certainly in the context of transgender persons, based on a prior Court Order specific to this regulation.  In stating so, HHS/DOJ were responding to a court order and a judge in Texas.   The NYT doesn't name the court case but attributes it to "eight states, a network of Roman Catholic hospitals, and the Christian Medical & Dental Association."  The CMDA has 19,000 members.

https://www.nytimes.com/2018/04/21/us/politics/trump-transgender-health-care.html

Somewhat ironically, a separate judicial ruling appears to uphold a Texas state law regarding discrimination as it applies to transgender issues (Wittmer v Phillips).

https://www.jdsupra.com/legalnews/title-vii-in-transition-texas-federal-35938/

Note that while the scale-back was announced in response to a judicial order, the Administration would have various options in handling the order - compliance, appeal to a higher court, etc.   Both left and right administrations have the option to rapidly comply with an order they find palatable and fight several years against an order they object to.

RELATIVE TO MEDICARE HOSPITAL POLICY 2016

In July 2016, CMS proposed standalone hospital rulemaking that combined two topics: (a) discrimination in Medicare, including transgender issues; and separately, (b) hospital antibiotic stewardship programs.
http://www.discoveriesinhealthpolicy.com/2018/04/brief-blog-communicating-and.html

https://www.federalregister.gov/documents/2016/06/16/2016-13925/medicare-and-medicaid-programs-hospital-and-critical-access-hospital-cah-changes-to-promote

Yes, it's a little confusing, because at about the same time HHS released final regulations on transgender and discrimination under ACA Section 1557 (May 2016), and CMS released somewhat similar proposed regulations specific directly to the Medicare program (July 2016).  This July 2016 proposed CMS regulation hasn't been finalized but CMS has 36 months to do so (July 2016 to July 2019), under SSA 1871.

RELATIVE TO PRISONS

There is also 2018 policymaking regarding transgender status in prisons.

https://www.dallasnews.com/news/texas-politics/2018/01/04/trump-likely-undo-obama-era-transgender-prisoners-policy-ending-texas-court-battle


RELATIVE TO CMS NCD ON MEDICARE & TRANSGENDER SURGERY

CMS reversed a decades old ban on transgender surgery Medicare coverage in 2014.
http://www.discoveriesinhealthpolicy.com/2014/05/judges-reject-decades-old-medicare-ban.html

CMS formally described transgender surgery as a condition and therapy for local coverage decisions in 2016.
http://www.discoveriesinhealthpolicy.com/2016/06/cms-posts-draft-decision-on-gender.html


RELATIVE TO "CONSCIENCE CLAUSE" REGULATION

Separately from the administration and court case on the implementation of ACA 1557 discussed above, a "conscience regulation" at HHS is under comment in early 2018.

https://www.hrc.org/blog/hrc-responds-to-the-trump-pence-admin-launch-of-unnecessary-conscience-divi

https://www.hrc.org/blog/thousands-of-hrc-members-submit-public-comments-to-hhs-attacks-on-lgbtq-hea

1971 Nixon Speech to AMA Annual Convention

In 1971, Nixon gave a long speech to the AMA annual convention in Atlantic City.

The topics would be familiar today - health care costs, new health care plan for cost control, and drug addiction crisis and need for new effective interventions.  The speech runs 5000 words (for me, 9pp single spaced).

http://www.presidency.ucsb.edu/ws/?pid=3051

Topics include:

• Previously spoke in 1951 and 1966
• Only 4 sitting Presidents have spoken to AMA; last Ike 1959
• Disraeli: Health of the people is the foundation of all happiness
• History of genius and impact; Mayo, Salk
• Doctors are geographically unbalanced, with shortage areas
• We need more emphasis on primary care
• Commercial health insurance leaves Americans without care or without catastrophic coverage
• We are in a period of productive discussion
• Your new president was a "boxing commissioner" - good background for health policy
• Nationalized compulsory health insurance is being discussed, but is a bad idea
• I said so in 1951 too.
• 25% of federal budget would be this giant health plan ($77B)
• I am recommending we increase federal health costs from $405 per year per family to $466.
• We don't want Feds to set national health policy, budgets, fee schedules.
• Free the doctor from bureacracy.
• What we propose is a National Health Insurance Partnership - not nationalized health insurance.
• American health system needs reform.
• We all work toward a system of choice, quality, and reduced costs.
• Now, drug abuse.
• Drug abuse is US Enemy #1.
• It is the greatest threat to our social future, and no longer a ghetto problem or black problem.
• After my proposals and a year of review, Congress has passed new laws - a national drug war.
• World, nation, and all segments of society.
• We will cut off the supply of dangerous narcotics, BUT, we will also double funding for rehabilitation.
• There will be a new "command post" in the Executive Office of the President (Dr. Jerome Jaffe)
• Nine federal agencies work on drugs, and compete against each other, we'll fix that.
• Emphasis on education: Preventive education is better than interdictment of supply or rehab or prison.
• There is a strong link between inappropriate use of drugs in the medical context, and abuse outside the medical context.
• Production of tranquilizers has doubles, with billions of doses of tranquilizers, amphetamines, barbituates.  50% are diverted into illegal channels.
• We could give high doses to every citizen for 11 days.  1/3 of people 18-74 used one of these drugs last year.
• "We have created a culture of drugs."  "A pill for every problem." Masking not fixing problems.
• Medical profession realizes that doctors prescribe drugs too fast, too easily.
• Doctors have a critical role in education of patients on the front lines.
• Arizona has a great new drug control program for Maricopa County, doctor-based.
• We think AMA for its "Volunteer Physicians for Vietnam" program.
• "Project USA" under my administration will marshal energy, leadership, of doctors in an all out battle against drug abuse, especially educating younger people.
• Doctors should have a role in policy and politics. *
• Closes with several paragraphs on the importance of doctors, leadership, and the grand vision of America in the world.

___
* A 1935 book, Frustration of Science, talks about whether scientists should go into politics, concluding no, they would simply become subject to the same forces as politicians.  Most of the book is about the decline of the West in the 1930s such as depression and fascism.