The U.S. Department of Health and Human Services (HHS) under President Biden has released new regulations affirming nondiscrimination protections for LGBTQ people in health care and for LGBTQ youth in foster care, and requiring access to foster care placements that are supportive of a child’s LGBTQI+ status or identity.
Nondiscrimination in Health Care
HHS’s Office for Civil Rights and the Centers for Medicare & Medicaid Services on Friday issued a final rule (or set of regulations) under Section 1557 of the Affordable Care Act (ACA) stating that the ACA’s ban on sex-based discrimination includes discrimination based on “sex characteristics, including intersex traits; pregnancy or related conditions; sexual orientation; gender identity, including transgender status; and sex stereotypes.” This reverses a Trump-era rule, and reinstates, clarifies, and extends protections established under President Obama.
Section 1557 applies to “any health program or activity that receives Federal financial assistance,” according to an HHS Fact Sheet, as well as to HHS’s own programs, including those administered by the Indian Health Service, Centers for Medicare & Medicaid Services, and the National Institutes of Health. In other words, all health care providers, insurers, and health programs receiving federal funds will have to abide by the rule or risk losing those funds.
Additionally, the rule requires all health care entities covered under the rule to proactively let people know that language assistance and accessibility services are available at no cost to patients and that covered health programs and activities offered via telehealth must also be accessible to individuals with limited English proficiency and those with disabilities.
Omar Gonzalez-Pagan, Counsel and Health Care Strategist for Lambda Legal, called the rule “a legally proper reading of the Affordable Care Act’s health care nondiscrimination law” and said:
This rule will help members of the LGBTQ+ community—especially transgender people, non-English speakers, immigrants, people of color, and people living with disabilities—to access the care they need and deserve, saving lives and making sure health care professionals serve patients with essential care no matter who they are.
Nondiscrimination in Foster Care
HHS yesterday finalized a separate rule clarifying that “all children in the child welfare system, including LGBTQI+ children, are entitled to protections against harassment, abuse, and mistreatment, regardless of their placement.” In order to meet “the existing statutory requirement to provide safe and proper care for all children in foster care,” it said in a press release, state and tribal child welfare agencies must therefore “ensure that LGBTQI+ children have access to specially designated foster care placements.”
In order to receive such a designation, HHS explained:
- The provider must commit to establishing an environment that supports the child’s LGBTQI+ status or identity; and
- The provider must be trained with the appropriate knowledge and skills to provide for the needs of the child related to the child’s self-identified sexual orientation, gender identity, and gender expression; and
- The provider must facilitate the child’s access to age- or developmentally appropriate resources, services, and activities that support their health and well-being.
No provider will be required to attain this designation nor penalized if it doesn’t; state and tribal agencies must simply “ensure that the totality of their child welfare system includes sufficient placements for LGBTQI+ children that meet each of the standards for designated placements.”
Importantly, too, “The rule also recognizes the critical role of kinship placements and states that services and training can be offered to current providers, including kin, to help them become a designated placement if they wish to do so.”
As HRC noted in its statement on this rule, research has shown that LGBTQ youth are overrepresented in foster care, and report high rates of mistreatment, more frequent placement disruptions, and a high likelihood of being placed in congregate care settings. David Stacy, Human Rights Campaign Vice President for Government Affairs, explained further:
Children in the foster care system face a lot of uncertainty, and LGBTQI+ children even more so. No child should worry that if they share their sexual orientation or gender identity that they’ll lose their ability to have a safe home, or be subjected to discrimination, harassment, or even the abuse of discredited ‘conversion therapy’ efforts. LGBTQI+ young folks, like all young folks, deserve safe and stable out-of-home care and these rules will help to ensure that they get it.
The rule comes just days after Tennessee passed a first-in-the-nation law allowing adults to foster and adopt LGBTQ kids even if the adults hold anti-LGBTQ beliefs. It’s not hard to predict court battles in the future. Already, Texas Attorney General Ken Paxton (R) has filed a lawsuit against the Biden administration for the rule it passed earlier this month strengthening nondiscrimination protections for LGBTQ students and others, and Texas Gov. Greg Abbott (R) has told the Texas Education Agency to ignore that rule, reports EdWeek. Governors and state education chiefs in Florida, Louisiana, Montana, Oklahoma, and South Carolina have also told schools to ignore that rule. I have a feeling that lawsuits over health care and foster care are not far behind. Nevertheless, kudos to the Biden-Harris administration for continuing to move these rules forward, always keeping in mind the well-being of youth and of all Americans, including the most vulnerable.
Which reminds me: Are you registered to vote?