Timothy R. Bussey, Ph.D.

1. Trans-Inclusive Insurance Access and the Affordable Care Act (ACA): Understanding Your Patient Rights and Navigating the Emerging Barriers within the Trump Administration’s Dept. of Health and Human Services Timothy R. Bussey, Ph.D.

2. Overview of Today’s Presentation • The following are our objectives for today’s talk: • 1) To understand the importance of the ACA in relation to access to trans-inclusive healthcare and insurance plans, • 2) To explore how the Trump administration may undermine Obama-era non-discrimination measures for transgender persons’ healthcare and insurance access, and • 3) To discuss the importance of trans-inclusive non-discrimination provisions at the federal level, while simultaneously exploring how the Conscience and Religious Freedom Division of HHS might undermine access to trans-inclusive healthcare.

3. A Quick Overview of the ACA The ACA is a landmark piece of federal legislation that revamped several aspects of existing healthcare law in 2010. Rather quickly, it was derogatorily nicknamed “Obamacare,” and there has been some confusion in the general public as to whether or not they are the same thing. (As a reminder, they are…) It created a government marketplace for healthcare plans, which sought to ensure that more people would have access to health insurance coverage. It eliminated the rationale of “pre-existing conditions,” which had previously eliminated some aspects of coverage for people with a history of illness. It is controversial because of the so-called “individual mandate,” which imposes a penalty for persons who don’t have healthcare coverage in a given year.

4. The Importance of the ACA to Trans-Inclusive Care • The ACA is the only piece of federal legislation that provides protections to transgender-related healthcare and insurance access. • In contextualizing this conversation, it is important to remember that healthcare options for the queer and trans community is less accessible than for straight and cisgender populations. • Multiple reasons for the lack of access may include some of the following: no competent medical provider in the area, plan doesn’t cover necessary coverage, out of network limitations, cost prohibitive, etc. http://news.gallup.com/poll/175445/lgbt-likely-non-lgbt-uninsured.aspx

5. The Importance of the ACA to Trans-Inclusive Care, cont. • In the summer of 2016, the Dept. of Health and Human Services (HHS) issued a new guidance on Section 1557 of the ACA, which is the non-discrimination provision of the law. • They provided guidance that stated anti-trans discrimination in a healthcare setting was a form of sex discrimination, since it was based on sex stereotyping. • This is a similar line of legal logic offered in the workplace, which is why we have seen successful precedent for trans rights in the workplace in the past few years. • This interpretation applies to the following: • 1) health settings that receive federal funds, • 2) HHS health programs, and • 3) ACA administered health programs. https://transgenderlawcenter.org/archives/12908

6. The Importance of the ACA to Trans-Inclusive Care, cont. • The most substantial benefit to the trans community is that this interpretation of the ACA also eliminates a “categorical coverage exclusion.” • What is a categorical coverage exclusion? • While it does provide these benefits, it does have clear limitations in terms of access to certain forms of transition related coverage—i.e. things that might be deemed “cosmetic” or “not medically necessary.” • Specifically, the ACA regulation stipulates that hormone replacement therapy and tests for hormone levels cannot be denied. While an insurer can decide to not cover certain options, they can’t simply deny all hormone therapy options.

7. How the Trump Administration Might Undermine the ACA • There are numerous ways that the Trump administration might do this. One of the most obvious would be to undermine Section 1557 of the ACA via their Dept. of HHS. • While HHS has not rescinded this guidance (and potentially could not as they did with Title IX in the Dept. of Education), there have been other concerns that have arisen. • However, it was reported, in April 2018, that the Trump administration may be re-examining this rule in the near future, and in the summer of 2018, HHS removed information about what sex discrimination in healthcare may look like. https://transequality.org/HCRL-FAQ https://mashable.com/article/trump-deleted-sex-discrimination-language-hhs-website/ https://www.nytimes.com/2018/04/21/us/politics/trump-transgender-health-care.html

8. How the Trump Administration Might Undermine the ACA, cont. • More specifically, HHS has created the Conscience and Religious Freedom Division, which exists to do the following: • “The Conscience and Religious Freedom Division has been established to restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom….The creation of the new division will provide HHS with the focus it needs to more vigorously and effectively enforce existing laws protecting the rights of conscience and religious freedom, the first freedom protected in the Bill of Rights.” Why might this new division matter? • https://www.hhs.gov/about/news/2018/01/18/hhs-ocr-announces-new-conscience-and-religious-freedom-division.html

9. How the Trump Administration Might Undermine the ACA, cont. • A less obvious way that the Trump administration might undermine the ACA (and, thus, transgender rights) would be to repeal the individual mandate. • By repealing the individual mandate, cost reduction in the health insurance market could be destabilized. In short, this would basically be a situation where ‘healthy’ people leave a market, which means that there are less people buying in. • While the individual mandate is controversial, it is the primary way that markets are able to be stabilized at a lower cost.

10. The Importance of Trans-Inclusive Protection at the Federal Level • The key reasons why the protection is important are as follows: • 1) It ensures that the protection exists in all health insurance plans and all regions of the country, which is particularly important in states that don’t have trans-inclusive protections; • 2) It helps to increase access on a number of levels; and • 3) It codifies trans-inclusive legislation and interpretations as a legal norm, while then setting precedent for future legal battles. http://www.ustranssurvey.org/reports/

11. How to Better Understand Transgender Patient Rights • A number of advocacy organizations are working to clarify information and patient rights under the ACA. • Most notably, major national organizations include the National Center for Transgender Equality, the Transgender Law Center, and the Human Rights Campaign among many others. • Regionally, other organizations, such as the Campaign for Southern Equality and Equality Federation affiliates, are working to spread this information. • Finally, local organizations are also working to increase access to this information and to provide support for transgender people, who may need assistance navigating the complex, layered system of healthcare in the U.S.

12. Question and Answer Session