As promised, I am posting the comments I submitted. But as they are particular to me, I found another articulate but briefer comment to share as a sample. Those who wish to submit a comment may adapt from or use one of these samples. Or you may simply fill out the HRC form and submit that. I am finally trying to post a simple easy to follow one page guide. You can post as anonymous rather than use your name. First the comments, then the links. The deadline is November 9. I urge all to consider submitting a comment.
My comment:
I commend HHS for its
Proposed Rule to implement Section 1557 of the Affordable Care Act and
urge its adoption. I specifically concur with the proposal's
prohibition of discrimination based on gender status, gender
nonconformity, or against persons who identify as transgender or
transitioning.
With respect to discrimination based on sexual
orientation, I commend HHS for its commitment to address this important
issue as much as I recognize the barriers presented by case law to date
and the omission of any specific reference to sexual orientation
discrimination in the ACA.
I urge OCR to continue to follow case
law, to track if possible instances or documentation of sexual
orientation discrimination, and to consider publishing a guidance for
covered entities on best practices for ensuring nondiscriminatory
services and treatment for persons who identify as lesbian, gay, or
bisexual.
Ultimately, I believe the issue of discrimination based
on sexual orientation is best addressed universally once and for all by
adding the term sexual orientation to the Civil Rights Act of 1964. I
believe that objections to this are not as strong as in prior decades
and civil rights advocates for many covered bases of discrimination are
more cooperative and aligned than ever. Perhaps HHS could could consult
with DOJ for DOJ/Civil Rights Division to consider convening a
conference of a broad range of civil rights advocates to consider
proposing legislation that would do just that and could result in
advocates working together to achieve a common goal.
Getting back
to the ACA, the current state of case law and federal legislation
regarding religious exemptions is beyond my understanding. I would
simply urge that HHS adopt the strongest possible language to prohibit
religious-based exemptions from prohibitions of discriminatory denial of
and access to treatment and health care services.
In my
experience of many years as an EOS for OCR, now retired, I saw much
evidence of discrimination against gays and transgenders that OCR could
not address. I am aware of even more through the personal experience of
friends, acquaintances and community members throughout my life. Only
yesterday I learned through social media of a friend's experience as a
health care provider at a private non profit federally funded health
clinic in Fresno. She had to demonstrate to other employees how to
treat and serve with respect and dignity a patient seeking Hormone
Replacement Therapy from the initial interaction of inquiring how or by
which name the patient wished to be addressed through interactions with
varying service providers at this clinic. Fortunately, this employee
was aware of how to provide nondiscriminatory access and treatment to
this patient but so many providers lack this capability.
Another comment from anonymous I found brief, succinct and to the point, a good example:
As a person of deep faith who believes that all of us no matter our
sexual orientation or gender identity are beloved and deserve access to
quality healthcare, and, as an OUT gay man for the past 33 years, I am
writing in support of the Department of Health and Human Services Notice
of Proposed Rulemaking on Nondiscrimination in Health Programs and
Activities.
I applaud the Department for establishing that the
prohibition on sex discrimination in Section 1557 of the Affordable Care
Act includes discrimination based on gender identity. Additionally I
urge the Department to prohibit discrimination based on sexual
orientation in the final rule. Further, I urge the department to refrain
from including a religious exemption in the final rule-to include such
an exemption is not only unnecessary, but could do significant harm.
to submit a comment go here:
http://www.regulations.gov/#!docketDetail;D=HHS-OCR-2015-0006
click on comment now; for more information, see the other links I provided in the earlier blog posts.
or go here to submit your comment through Human Rights Campaign
https://secure3.convio.net/hrc/site/Advocacy?cmd=display&page=UserAction&id=2249&s_src=FY16_ma_OCT_FBK_Healthcare_Healthcare-1-10153748901688281_78656082&utm_source=FY16_ma_OCT_FBK_Healthcare&utm_medium=AD&utm_campaign=Healthcare&utm_content=Healthcare-1-10153748901688281_78656082
Monday, November 2, 2015
Sunday, November 1, 2015
NON DISCRIMINATORY ACCESS TO HEALTH CARE SERVICES FOR ALL PART 2
The rule of law is the most advanced method of self-government humankind has developed throughout history to avoid mob rule or the kingdom of the individual, each for self, power to the strongest, most armed richest. It's not perfect, it's complex and it's evolving.
As explained above, when a law is passed an agency in the executive branch is required to enforce it as written by issuing regulations for clarity. The proposed rule discussed herein is Section 1557 of the Affordable Care Act. Section 1557 is the first federal civil rights law that bars sex discrimination in federally funded health care, As I explained above, case law has established that sex discrimination covers gender identify and nonconformity. The ACA however does not explicitly prohibit discrimination based on sexual orientation. HHS must enforce what exists, no more no less. HRC is asserting that sex discrimination also covers discrimination based on sexual orientation. Despite its assertion, that is an open question at best. I searched but could not find any information on this matter explaining the basis for its assertion on its web site. All I have to go on in trying to understand their assertion is the request for comments I linked.Therein, HRC states: "Numerous federal courts and the Equal Employment Opportunity Commission have determined that discrimination on the basis of sexual orientation is sex discrimination under federal law." However, I can find no basis for that statement on its site or elsewhere, it simply provides no documentation to support its assertion. Perhaps it thinks it too complicated too understand. HRC correctly asserts that unless HHS determines that sex discrimination covers sexual orientation, the ACA does not prohibit discrimination based on sexual orientation. The fact is the ACA does not prohibit discrimination based on sexual orientation; to include such a basis would violate the Constitutional doctrine of separation of powers in effect for over 200 years. Congress has the authority to pass legislation in the ACA or separately prohibiting sexual orientation discrimination without which federal agencies cannot prohibit it unless Courts find otherwise.
HHS, however, is so concerned with discrimination based on sexual orientation that it addresses the matter in the proposed rule despite no explicit provision in the law as follows:
"The proposed rule makes clear HHS’s commitment, as a matter of policy, to banning discrimination based on sexual orientation and requests comment on how a final rule can incorporate the most robust set of protections against discrimination supported by the courts on an ongoing basis.
As a matter of policy, we support banning discrimination in health programs and activities not only on the bases identified previously, but also on the basis of sexual orientation. Current law is mixed on whether existing Federal nondiscrimination laws prohibit discrimination on the basis of sexual orientation as a part of their prohibitions of sex discrimination. To date, no Federal appellate court has concluded that Title IX's prohibition of discrimination “on the basis of sex”—or Federal laws prohibiting sex discrimination more generally—prohibits sexual orientation discrimination, and some appellate courts previously reached the opposite conclusion. (22)
However, a recent EEOC decision concluded that Title VII's prohibition of discrimination “on the basis of sex” precludes sexual orientation discrimination because discrimination on the basis of sexual orientation necessarily involves sex-based considerations. The EEOC relied on several theories to reach this conclusion: A plain interpretation of the term “sex” in the statutory language, an associational theory of discrimination based on “sex,” and the gender-stereotype theory announced in Price Waterhouse. (23) The EEOC's decision cited several district court decisions that similarly concluded that sex discrimination included sexual orientation discrimination, using these theories. (24) The EEOC also analyzed and called into question the appellate decisions that have concluded that sexual orientation discrimination is not covered under Title VII. The EEOC decision applies to workplace conditions, as well as hiring, firing, and promotion decisions, and is one of several recent developments in the law that have resulted in additional protections for lesbian and gay individuals against discrimination. (25)
The final rule should reflect the current state of nondiscrimination law, including with respect to prohibited bases of discrimination. We seek comment on the best way of ensuring that this rule includes the most robust set of protections supported by the courts on an ongoing basis."
Legal experts can disagree with the assessment expressed above by HHS and HRC as is its right has chosen to do so. After again reading OCR's position as stated above, I see that EEOC has determined that sex discrimination precludes discrimination based on sexual orientation. But OCR states that no Federal appellate court has issued a decision consistent with that EEOC decision and states that as a matter of Constitutional principles, OCR cannot assert that sex discrimination covers sexual orientation discrimination.
Another area addressed in the proposed rule is the principle of religious exemption. Due to recent Supreme Court rulings and other legislation, I find the status of case law in this matter too confusing for me to contemplate. All I know is no service provider should ever be able to deny services or discriminate due to religious beliefs. The proposed rule has language finessing a fine line between compliance with existing case law without upholding it while asserting that religious exemptions so should not be allowed.
So what does this all mean? I concludes as follows:
Everyone should submit comments either through HRC or directly to HHS on the 3 issues of some controversy in the proposed rule, the more the better, you know the bigots will be submitting their comments:
1) Concurring with the Rule as written to prohibit discrimination based on gender status or nonconformity;
2) Expressing objection to discrimination based on sexual orientation - while HHS is unlikely to include explicit prohibitions, your comments are documented and count and can be used to show Congress the widespread support for passing laws to prohibit discrimination based on sexual orientation;
3) Expressing objections to allow religious exemptions for health care service providers.
So why did I take so long to state something so simple - because I was puzzled by HRC's assertion and wanted to determine its validity and basis for myself, because I wanted to educate anyone interested in the history of discrimination in health care and the current state of case law regarding discrimination against gays and transgenders, and to explain why discrimination against transgenders is prohibited before discrimination based on sexual orientation but not to defend the lack of laws prohibiting discrimination
During my last presentation prior to retirement, I was as surprised as I was pleased to discuss OCR's authority to enforce provisions of the ACA prohibiting discrimination against transgenders in the provision of health care services, and that those who believed they had experienced such discrimination could file a complaint with OCR, even if I wouldn't be around to investigate it and issue findings, and before an audience of health providers that included staff and clients who are transgender or gender nonconforming.
For those who have read this far, after you have submitted your comments, with elections approaching, you can ask candidates for office in your district or state whether they would vote in favor of amending the Civil Rights Act of 1964 to include the basis of sexual orientation to once and for all prohibit discrimination against lesbians and gays throughout the United States in employment, housing, health care, public accommodations and all other areas with one simple amendment.
Links:
Fact Sheet: Nondiscrimination in Health Programs and Activities Proposed Rule
Section 1557 of the Affordable Care Act:
http://www.hhs.gov/ocr/civilrights/understanding/section1557/nprmsummary.html
FAQs - Section 1557 of the Affordable Care Act, Notice of Proposed Rulemaking:
http://www.hhs.gov/ocr/civilrights/understanding/section1557/nprmprqas.html
Nondiscrimination in Health Programs and Activities - Proposed Rule:
http://www.regulations.gov/#!documentDetail;D=HHS-OCR-2015-0006-0001
http://www.hhs.gov/ocr/
http://www.hhs.gov/ocr/
http://www.hhs.gov/ocr/
http://www.hhs.gov/ocr/office/file/index.html - how to file a complaint
NON DISCRIMINATORY ACCESS TO HEALTH CARE SERVICES FOR ALL PART 1
Recently 2 distinct postings on FB brought my attention
back to my career enforcing Federal laws prohibiting discrimination in
health care and human services on the basis of race, color, national
origin, sex, age, and disability, including HIV status or alleged risk
status. These laws were passed as part of the Civil Rights Act of 1964
(and related case law with respect to HIV as a disability). Enforcement
of laws, especially with respect to civil rights, are dispersed among
the many federal agencies, each having jurisdiction over its subject
matter or fundees. Specifically I worked for the US Department of
Health Education and Welfare and its successor agency the US Department
of Health and Human Services, Office for Civil Rights (HHS/OCR -
http://www.hhs.gov/ocr/office/index.html
Discrimination in the provision of health services has a long tawdry appalling history in the Unites States. The book "Health Care Divided, Race and Healing a Nation” by David Barton Smith, thoroughly covers that history prior to 1964 and perhaps beyond as well. I am not going to go back quite that far.
The first FB item that got my attention was a posting from a health care worker (and also member of a royal court) discussing her experience in showing other staff how to treat a person going through gender transitioning with dignity and respect at a private non-profit health care clinic. The other item was a link to the advocacy organization Human Rights Campaign Fund soliciting comments to HHS/OCR regarding a proposed regulation the drafting of which started as my career was ending. I will discuss that period and my thoughts, which may slightly diverge from the HRCF's view, in a moment. But first to demonstrate the importance of this issue and of the greatest number of people possible submitting comments on your view of nondiscriminatory access to health care services for all and the proposed regulation I am including the link to the proposed HRCF comments and form right here. You don't have to read what I think; you can stop and fill out your opinion now.
https://secure3.convio.net/hrc/site/Advocacy?cmd=display...
You may also, however, submit your comments directly to HHS without going through HRCF here -
http://www.regulations.gov/#!submitComment;D=HHS-OCR-2015-0006-0001
or after reviewing info here
http://www.regulations.gov/#!docketDetail;D=HHS-OCR-2015-0006
Comments are due by November 9, 2015. Briefly, when Congress passes and the President signs a law, the appropriate federal agency issues specific regulations to enforce the law. Once the agency drafts the proposed regulation, it is published in the Federal Register so the public may view and comment on it. After the comment deadline, real people in DC read each and every comment, summarize and categorize them, determine whether to amend or change any part of the proposal, then the Department publishes the final regulation in the Federal Register along with a summary of the comments, and the reasons for any changes made or considered and rejected. Then the Department begins enforcement. It is a lengthy process. But your comment is read and each one is significant, especially if many present a common view, such as the HRCF is urging. At the end of this article, I am going to post links to the proposed regulation, Qs and As, FAQs, TA information, and links to other documents or information you may find of interest on OCR's site.
Since my view and understanding of case law is based on my experience and informs my view of comments that I am considering, I want to provide some historical background first. This is also necessary because as you will see there is a tremendous and unexpected irony that I myself faced at the end of my career and addressed in my very last public presentation on OCR's enforcement of regulations prohibiting discrimination and OCR's complaint process to an advocacy organization transitioning to a health services provider consistent with the reforms authorized by the Affordable Care Act - an organization staffed in part by and whose primary mission is to serve Asian-Pacific Islander-Americans with or at risk for HIV/AIDS including persons identifying as gay or gender nonconforming or transgender. it is a question I had to face that HRCF's notice directly raises - how did we get to this point where discrimination based on gender status or nonconformity is prohibited but discrimination based on sexual orientation is not?
Way back when I first started, I hoped that before I retired Congress would pass and OCR would be authorized to enforce laws prohibiting discrimination based on sexual orientation. For a while it did not seem to be an unrealistic expectation. Support for gay rights was increasing and far more bipartisan than it is today. It seemed that with each session of Congress passage of the proposed Employment Non Discrimination Act (ENDA) seemed a little closer. Then life interrupted. I became involved in issues relating to HIV related discrimination, achieving national expertise within OCR and for awhile speaking at conferences around the country. Eventually someone wondered why an agency with 10 regional offices had only one guy who could speak on the issue. Advocates in Region IX where I worked were marveling that OCR was issuing violation findings on complaints they filed while advocates in many other regions were marveling that OCR was issuing findings of compliance. Training was in order and after another 2 or 3 years of struggle completed so that each regional office could address HIV discrimination with competent expertise and my national touring days were over.
I wrote a lot more on my experience in OCR that is posted elsewhere on my blog mostly on the "Career" page but also the "Politics and Government Page" that is not directly relevant to discuss here. Eventually as I became more informed and got to know more legal experts and advocates I realized ENDA did not cover the provision of services. And its support was actually decreasing among Republicans and passage looked more and more distant. Although I understand more now how it occurred, i remain like many of you shocked that same sex marriage has been legalized before discrimination has been prohibited. And what is the value of sanctioned marriage if it results in losing employment and/or housing? And as i have been doing since I could talk, i started asking lots and lots of questions in particular about why advocates were seeking new laws to prohibit discrimination based on sexual orientation, which would have to be passed to cover employment, access to services, and public accommodations across a broad range of areas, rather than simply amending the Civil Rights Act of 1964 to include sexual orientation.
Now what of discrimination regarding gender conformity and status? Certainly I would not object to including it as well in the CRA and so do many others. But just as unexpected as legalization of same sex marriage have been advances on this issue in widely accepted case law. Over the past number of years, Federal courts have issued rulings that have been widely accepted finding that the term sex when applied to discrimination incorporates gender status and nonconformity. Rather than objecting, the federal Equal Employment Opportunity Commission and the US Department of Justice, Civil Rights Division have concurred with such findings. So today it can be said that Federal law prohibits discrimination against persons identifying as transgender. So whether it is necessary to include gender status in an amended CRA is an open question.
Now what of sexual orientation - is that also incorporated within the definition of sex discrimination. Therein lies the controversy. HRCF seems to assert that courts have ruled that it does. I am not aware that they have. And if they have, does CRA need to be amended or ENDA adopted? Why aren't Federal agencies such as EEOC and DOJ presently forbidding discrimination based on sexual orientation. Having relieved my brain of the above and developed my thoughts to this point, I need to take a break and informed by my review of the above, read again what HRCF, says what the law states, what the regs say and all the background info on OCR's site. I will return with my conclusion in Part 2, which will discuss whether Affordable Care Act and case law cover sexual orientation and the affect thereof on the proposed regulations.
Discrimination in the provision of health services has a long tawdry appalling history in the Unites States. The book "Health Care Divided, Race and Healing a Nation” by David Barton Smith, thoroughly covers that history prior to 1964 and perhaps beyond as well. I am not going to go back quite that far.
The first FB item that got my attention was a posting from a health care worker (and also member of a royal court) discussing her experience in showing other staff how to treat a person going through gender transitioning with dignity and respect at a private non-profit health care clinic. The other item was a link to the advocacy organization Human Rights Campaign Fund soliciting comments to HHS/OCR regarding a proposed regulation the drafting of which started as my career was ending. I will discuss that period and my thoughts, which may slightly diverge from the HRCF's view, in a moment. But first to demonstrate the importance of this issue and of the greatest number of people possible submitting comments on your view of nondiscriminatory access to health care services for all and the proposed regulation I am including the link to the proposed HRCF comments and form right here. You don't have to read what I think; you can stop and fill out your opinion now.
https://secure3.convio.net/hrc/site/Advocacy?cmd=display...
You may also, however, submit your comments directly to HHS without going through HRCF here -
http://www.regulations.gov/#!submitComment;D=HHS-OCR-2015-0006-0001
or after reviewing info here
http://www.regulations.gov/#!docketDetail;D=HHS-OCR-2015-0006
Comments are due by November 9, 2015. Briefly, when Congress passes and the President signs a law, the appropriate federal agency issues specific regulations to enforce the law. Once the agency drafts the proposed regulation, it is published in the Federal Register so the public may view and comment on it. After the comment deadline, real people in DC read each and every comment, summarize and categorize them, determine whether to amend or change any part of the proposal, then the Department publishes the final regulation in the Federal Register along with a summary of the comments, and the reasons for any changes made or considered and rejected. Then the Department begins enforcement. It is a lengthy process. But your comment is read and each one is significant, especially if many present a common view, such as the HRCF is urging. At the end of this article, I am going to post links to the proposed regulation, Qs and As, FAQs, TA information, and links to other documents or information you may find of interest on OCR's site.
Since my view and understanding of case law is based on my experience and informs my view of comments that I am considering, I want to provide some historical background first. This is also necessary because as you will see there is a tremendous and unexpected irony that I myself faced at the end of my career and addressed in my very last public presentation on OCR's enforcement of regulations prohibiting discrimination and OCR's complaint process to an advocacy organization transitioning to a health services provider consistent with the reforms authorized by the Affordable Care Act - an organization staffed in part by and whose primary mission is to serve Asian-Pacific Islander-Americans with or at risk for HIV/AIDS including persons identifying as gay or gender nonconforming or transgender. it is a question I had to face that HRCF's notice directly raises - how did we get to this point where discrimination based on gender status or nonconformity is prohibited but discrimination based on sexual orientation is not?
Way back when I first started, I hoped that before I retired Congress would pass and OCR would be authorized to enforce laws prohibiting discrimination based on sexual orientation. For a while it did not seem to be an unrealistic expectation. Support for gay rights was increasing and far more bipartisan than it is today. It seemed that with each session of Congress passage of the proposed Employment Non Discrimination Act (ENDA) seemed a little closer. Then life interrupted. I became involved in issues relating to HIV related discrimination, achieving national expertise within OCR and for awhile speaking at conferences around the country. Eventually someone wondered why an agency with 10 regional offices had only one guy who could speak on the issue. Advocates in Region IX where I worked were marveling that OCR was issuing violation findings on complaints they filed while advocates in many other regions were marveling that OCR was issuing findings of compliance. Training was in order and after another 2 or 3 years of struggle completed so that each regional office could address HIV discrimination with competent expertise and my national touring days were over.
I wrote a lot more on my experience in OCR that is posted elsewhere on my blog mostly on the "Career" page but also the "Politics and Government Page" that is not directly relevant to discuss here. Eventually as I became more informed and got to know more legal experts and advocates I realized ENDA did not cover the provision of services. And its support was actually decreasing among Republicans and passage looked more and more distant. Although I understand more now how it occurred, i remain like many of you shocked that same sex marriage has been legalized before discrimination has been prohibited. And what is the value of sanctioned marriage if it results in losing employment and/or housing? And as i have been doing since I could talk, i started asking lots and lots of questions in particular about why advocates were seeking new laws to prohibit discrimination based on sexual orientation, which would have to be passed to cover employment, access to services, and public accommodations across a broad range of areas, rather than simply amending the Civil Rights Act of 1964 to include sexual orientation.
Turns out civil rights
advocates did not want to equate discrimination based on race with
discrimination based on sexual orientation. Now that's a loaded issue I
am not going to get bogged down in with the exception of some broadly
agreed upon caveats - gay people as a class were not enslaved by the
majority nor were subject to mass and regular lynching. I especially do
not want to discuss "passing" either with respect to light skinned
Blacks or gender conforming gays. But the other caveat is that
discrimination is wrong and must be prohibited in all instances
consistent with the Equal Protection Clause of the Constitution. I
don't think it's necessary to discuss or agree on much more than that.
Now as I see it, ENDA is on life support. And tremendous progress has
been made in achieving coalitions and common ground among traditional
civil rights advocates representing persons of color and persons who are
gay, lesbian, or gender non-conforming or transgender. Some LGBT
advocates, and I am in strong agreement with them, believe we should
drop ENDA and work on amending The Civil Rights Act of 1964 to include
sexual orientation. That would be simplest, most effective, and most
fair, and most consistent with Constitutional values. Some traditional
civil rights advocates may object, but I believe it will come down to a
generational divide and those objecting may risk losing their office.
The time has come to amend the CRA.
Now what of discrimination regarding gender conformity and status? Certainly I would not object to including it as well in the CRA and so do many others. But just as unexpected as legalization of same sex marriage have been advances on this issue in widely accepted case law. Over the past number of years, Federal courts have issued rulings that have been widely accepted finding that the term sex when applied to discrimination incorporates gender status and nonconformity. Rather than objecting, the federal Equal Employment Opportunity Commission and the US Department of Justice, Civil Rights Division have concurred with such findings. So today it can be said that Federal law prohibits discrimination against persons identifying as transgender. So whether it is necessary to include gender status in an amended CRA is an open question.
Now what of sexual orientation - is that also incorporated within the definition of sex discrimination. Therein lies the controversy. HRCF seems to assert that courts have ruled that it does. I am not aware that they have. And if they have, does CRA need to be amended or ENDA adopted? Why aren't Federal agencies such as EEOC and DOJ presently forbidding discrimination based on sexual orientation. Having relieved my brain of the above and developed my thoughts to this point, I need to take a break and informed by my review of the above, read again what HRCF, says what the law states, what the regs say and all the background info on OCR's site. I will return with my conclusion in Part 2, which will discuss whether Affordable Care Act and case law cover sexual orientation and the affect thereof on the proposed regulations.
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