In January of 2018, the Trump Administration founded a new division within the Office of Civil Rights (OCR) known as the Conscience and Religious Freedom Division, to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.” Since then there has been a regulatory trend of rolling back protections for LGBTQ+ access to health care. Tech companies have begun addressing this problem by developing apps to connect LGBTQ+ patients to care.
In May of 2019, the Conscience and Religious Freedom Division published a final rule to “protect individuals, providers and other health care entities from having to provide, participate in, pay for, provide coverage of, inform patients about or refer services concerning” specific procedures such as abortion, sterilization, and assisted suicide as well as “any procedures that are against [employees’] religious or moral beliefs.” The regulation expands 25 existing statutes protecting against discrimination and retaliation for refusing to take part in the delivery of care for religious and moral reasons.
However, the broader implementation of these statutes is aimed at more forcefully protecting entity and individual rights to refuse care may cause significantly more discrimination barring access to care for LGBTQ+ patients, as it covers gender-affirming therapy and surgeries as well as HIV+ care.
The language of the rule protects any service provider “with an articulable connection” to the care provided. This means that not only doctors and nurses are covered, but also receptionists, pharmacists, EMS providers, and medical transporters within hospital walls. While the rule allows employers to require disclosure of all religious and moral objections before beginning work, it has no guidance for how healthcare providers can protect patient access to care with their existing workforce. Employers may provide alternative staff to replace an objecting employee, however in rural communities where hospitals are frequently understaffed, this may not be possible.
The implementation of this final rule, originally scheduled for July 22, 2019, has been delayed until November 22, 2019 amidst litigation by several states. Opponents contend that the rule is “unconstitutional under the Spending Clause and the First and Fifth amendments as well as unlawful under the Administrative Procedure Act (APA).” LGBTQ+ patients, especially those who identity as transgender, already face significant health disparities and difficulties accessing care free from discrimination. This regulation will likely further exacerbate these problems and decrease access to care further.
The National Institute on Minority Health and Health Disparities (NIMHD), a sector of the NIH, studies health disparities and researches how to decrease their impact on underserved populations. Sexual and Gender Minorities were identified as an underserved minority population that faces health disparities in 2015. Since then the Institute has focused on researching origins and solutions for this disparity. On August 30th, 2019 the NIMHD published a notice that they will be increasing the definition of sexual and gender minorities in an effort to become more inclusive of those affected by this disparity. According to the NIMHD, “[sexual and gender minorities] face unique health challenges, and a continually growing body of evidence suggest that [they] suffer disproportionately from a variety of conditions and diseases.” As continued and increasing amounts of discrimination against these populations is sanctioned by the Trump Administration, this disparity will likely expand significantly.
To further compound the issue of LGBTQ+ heath disparities, should a transgender patient wish to challenge the discrimination they face due to their gender identity, the Affordable Care and Patient Protection Act will no longer protect them. On June 14, 2019 the Department of Health and Human Services (DHHS) proposed substantial revisions to §1557 of the ACA, that would “eliminate the general prohibition on discrimination based on gender identity as well as specific health insurance coverage protections for transgender individuals.” This proposed rule rolls back the 2016 expansion of the definition of “sex discrimination,” challenged and immediately enjoyed by courts after its implementation for incongruence with Title IX. The comment period for DHHS’ proposed rule closed on August 13th, and DHHS is expected to publish their final rule in the coming weeks. If finalized, this rule could be implemented concurrently with the final conscience rule.
To combat this lack of access to care, tech companies are coming to the rescue. Pennsylvania medical students developed the app SpectrumScores in late 2017 with the goal of connecting patients to LGBTQ+ competent medical providers. This app allows you to search for providers according to practice area or ailment and, similar to Yelp, a list of providers appears with scores compiled from reviews left by app users.
LGBT MD is an app currently in development (demo version here) that maps out LGBTQ+ friendly health care providers. Users can use the app to find a provider and filter by public insurance, trans-friendly providers or mental health providers. All the providers on the app are either certified by Health Professionals advancing LGBTQ Equality (formerly known as GLMA: Gay and Lesbian Medical Association) or recommended by app users. While the demo concentrates on the San Francisco area, this model, if developed on a much broader geographic scale, could become an incredibly functional LGBTQ ally in narrowing health disparities.
Information is power, and further development of applications that connect those seeking care to safe and reliable care will be crucial in the current regulatory landscape that is working to increase disparities further.
September 8, 2019