On October 3, NRB filed a public comment on a proposed rule by the Department of Health and Human Services (HHS) interpreting Section 1557 of the Affordable Care Act (ACA), which concerns “nondiscrimination in health programs and activities.” Read NRB’s previous Section 1557 explainer here.
“We object to language in the proposed regulations that can be read to violate, supersede, or preempt professional and evidence-based clinical judgments by requiring the provision and coverage of medically ineffective or harmful procedures,” the NRB comment reads.
NRB’s comment focused on Section 92.206 of the proposed regulation, “Equal Program Access on the Basis of Sex,” which disqualifies an overall objection to gender transitioning procedures as a legitimate basis for a judgment that the treatment is not clinically appropriate.
“A provider’s view that no gender transition or other gender-affirming care can ever be beneficial for such individuals (or its compliance with a state or local law that reflects a similar judgment) is not a sufficient basis for a judgment that a health service is not clinically appropriate,” § 92.206 reads.
“Here, HHS departs from regulating healthcare to regulating the conscience itself, proposing that a provider who believes gender transitions are never clinically appropriate—for religious reasons or otherwise—would be disqualified from federal programs if the provider acts according to that view,” NRB wrote, adding:
Declining to perform or cover forms of treatment that a provider finds harmful or ineffective in all cases is not a form of discrimination. Further, the proposal that some healthcare providers should perform procedures they consider clinically inappropriate, including those that surgically alter the body, cause sterilization, or stunt sexual development—even if they are prohibited by state or local law—is unacceptable from an ethical perspective and may be unworkable from a legal perspective. . . HHS should exclude from the regulations language that would compel health care providers or insurance issuers to violate their religious beliefs, moral convictions, or professional judgments by providing or covering treatments they consider harmful, ineffective, or unsupported by medical evidence.
The proposed rule attracted more than 17,000 comment submissions from organizations and members of the public. Read NRB’s full comment here.
