Inside the Beltway - June 2024

Inside the Beltway is a member-only benefit developed by NAPNAP’s Health Policy Team to keep members up to date on key policy issues at the federal level.

Federal Health Care Protections for the LGBTQ+ Community

Contributed by Health Policy Committee member Sarah Green, DNP, CPNP-AC

In honor and recognition of LTBTQ+ Pride month, this June Inside the Beltway article seeks to draw awareness to the strides and challenges in federal healthcare protections for the LGBTQ+ community.

On April 27, 2024, the Biden Administration’s Department of Health and Human Services (HHS) finalized the revised regulations implementing Section 1557 of the Affordable Care Act (ACA). Section 1557 of the ACA focuses on non-discrimination provisions of the law. It specifically prohibits discrimination on the basis of race, color, national origin, age, disability, or sex. The non-discrimination provisions apply to health programs and activities receiving federal financial assistance, referred to as covered entities. Although the Section 1557 ACA protections were enacted in 2010, interpretation and implementation have been at the guidance presidential administrations. This has resulted in conflicting views regarding implementation of Section 1557.

Section 1557 non-discrimination protections focus on preventing covered entities from discriminating against certain protected groups in providing health care services, insurance coverage, program participation and prohibition of benefit denial and treatment that would be considered unequal. This final rule has staggered effective dates that begin to take effect on July 5, 2024. The updated rule specifically provides non-discrimination protections based upon sexual orientation and sex characteristics, seeking to improve gender identity protections and health care protections for LGBTQ+ Americans. It is well identified that LGBTQ+ individuals experience discrimination and difficulty accessing services at higher rates than those not in the LGBTQ+ community. In particular, “LGBTQIA+ youth are exposed to social stigma, discrimination, prejudice and victimization during adolescence that have long-term impacts.”

Section 1557, as originally implemented during the Obama administration, prohibited health insurer discrimination based upon one’s sex, including gender identity in the context of healthcare coverage. This includes refusing to provide treatment that is typically associated with a specific gender, because the individual’s gender is different than that which is listed on the individual’s medical record. The rule, as it was originally written, also focused on protecting against discrimination based upon one’s sexual orientation. The updated rule reinstates the nondiscrimination protections removed in the 2020 Trump Administration regulation, specifically protections based on sexual orientation and gender identity.

In terms of sexual orientation and gender identity protections, the Biden Administration’s updated rule will specifically prohibit the following types of discrimination.

Verbal or physical abuse from healthcare providers directed at LGBTQ+ patients.
Refusing to care for LGBTQ+ individuals in emergency situations based upon their sexual orientation or their gender identity.
Health insurance issuers, state Medicaid agencies, and other covered entities from excluding categories of services in a discriminatory way. Coverage must be provided in a neutral and nondiscriminatory manner.

The updated final rule does allow health care entities to request a waiver based upon religious beliefs. Recipients who believe that they are exempt from certain provisions through federal conscience or religious freedom law, may rely on applications of these laws to seek exemptions. A temporary exemption from investigation and enforcement will be effective upon submission, expiring upon a final decision. There is also an appeals process.

The significant challenge to final rules set by the Executive Branch, is that implementation and changes are subject to change and interpretation based upon the sitting administration. Despite additional protections provided in this final rule, the debate surrounding Section 1557 protections, will be dependent upon the outcome of the November 2024 Presidential election. This places healthcare protections for LTBTQ+ individuals at risk for rollbacks and changes.

As stated in the NAPNAP position statement on Health Risks and Needs of Lesbian, Gay, Bisexual, Transgender, and Questioning Youth, “The overall goal in caring for all youth, including those who are lesbian, gay, bisexual, gender non-conforming, transgender, questioning, intersex or asexual (LGBTQIA) is to promote adolescent development, social and emotional well-being, physical health, and reduce any associated physical and mental health risks. ..The National Association of Pediatric Nurse Practitioners strives to be an advocate for LGBTQIA+ youth and supports equitable, accessible, evidence-based health care for patients and their families.”

It is vital as pediatric focused practitioners that we advocate for equal access to care for all patients and that these protections are long-standing and codified into law.

References:

NEW: Key NAPNAP Advocacy Activities

NAPNAP’s Health Policy team, including our federal government affairs representative, committee chair and members, Executive Board members and staff, are working every day to advocate for federal legislation and regulations that positively impact child health and advanced practice nursing. In each edition of Inside the Beltway, we will highlight a few recent key activities.

Supported the Gun Violence Prevention Research Roundtable request for $35 million in fiscal 2025 funding for the Centers for Disease Control and Prevention, $25 million for the National Institutes of Health, and $1 million for the National Institute of Justice to fund research into the prevention of incidents of violence, injury and death related to firearms. Joined with 25 NAPNAP chapters in signing on to a letter to the chairs and ranking members of the House and Senate Appropriations Committees supporting the funding request.
Joined representatives of national pediatric and children’s health organizations in meeting with senior officials from the Centers for Medicaid and CHIP Services for a detailed discussion about current children’s health issues in Medicaid and CHIP, including updates on recent regulations, upcoming policies, and states’ implementation of Early and Periodic Screening, Diagnostic, and Treatment (EPSDT) benefits.
Supported the “Dr. Lorna Breen Health Care Professional Protection Reauthorization Act” (S. 3679), providing grants and activities to improve mental and behavioral health among health care providers, in advance of the committee’s markup of the bill.
Met with staff for Sen. Brian Schatz (D-HI) to discuss the “Kids Off Social Media Act” (S. 4213), setting a mandatory minimum age of 13 to use social media apps and require parental or guardian consent for kids 13 to 17, and other legislation to expand online data and privacy protections for children. Submitted to Sen. Schatz’s staff a quotation from NAPNAP President Dr. Regena Spratling for inclusion in a press release anticipating the Senate Commerce, Science, and Transportation Committee advancing the “Kids Off Social Media Act.”
Coordinated with staff for Reps. Kathy Castor (D-FL), August Plfuger (R-TX), John Sarbanes (D-MD), and John Joyce (R-PA) on NAPNAP’s endorsement of the “Early Action and Responsiveness Lifts Youth (EARLY) Minds Act” (H.R. 7808), allowing states to use up to 5 percent of their Community Mental Health Block Grant (MHBG) funds for prevention and early intervention services with children and adults.

Supreme Court Rules on Abortion Pill, Bump Stocks

As it approaches the close of its current term, the Supreme Court last week preserved access to the widely available abortion drug mifepristone and struck down a ban on devices that enable semiautomatic rifles to fire at speeds similar to machine guns. Both rulings could have broader implications: in FDA v. Alliance for Hippocratic Medicine, justices unanimously agreed that the plaintiffs lacked legal standing to challenge the Food and Drug Administration’s approval of mifepristone, skirting the central issue of the agency’s authority and procedures in sanctioning the drug. In Garland v. Cargill, the court split 6 to 3 along ideological lines in striking down a Trump-era ban on “bump stocks,” one of the federal government’s rare firearm regulations to result from a mass shooting after a gunman opened fire at a Las Vegas concert in 2017.

The decision in the bump stock case raised concerns about how the conservative court may decide several cases seeking to undercut the power of administrative agencies. The court has yet to issue opinions in two cases involving regulations issued by the National Marine Fisheries Service that could overturn a nearly four-decade policy that courts should defer to federal agencies’ reasonable interpretation of ambiguous statutes. The ruling in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce could impact a wide range of federal regulations including those covering health care coverage and payment, drug approvals, and other policies. During oral arguments, justices appears willing to reject or at least significantly restrict the application of the so-called “Chevron deference.”

In Trump v. U.S., justices must also resolve the question of whether a president can be held criminally liable for any official acts, even after leaving office and where the alleged offenses relate to obstructing the peaceful transition of power after an election, a decision that will affect several ongoing federal and state prosecutions involving the former president. The court will also decide whether individuals subject to domestic violence protective orders have a constitutional right to possess firearms in U.S. v. Rahimi, challenging a federal prohibition.

Congress Moves To Extend Telehealth Expansion

Key committees in both chambers of Congress are moving to advance legislation that would extend key COVID-19 pandemic telehealth waivers set to expire at the end of the year, although they differ on the length of that extension. The House Energy and Commerce Health Subcommittee unanimously advanced legislation last month that would extend the telehealth policies for two years, although committee Democrats warned that it would be ineffective for underserved populations unless the expired Affordable Connectivity Program providing broadband subsidies was also extended. Earlier in the month, the House Ways and Means Committee agreed to a similar two-year extension of Medicare telehealth rules that have allowed for more reimbursement of virtual care.

There is strong support in both chambers for making the telehealth expansion permanent. Senate Finance Committee Chair Ron Wyden (D-OR) and ranking Republican Mike Crapo (ID) released a white paper in May seeking feedback on possible reforms to the Medicare Part B payment system that included a proposal to expand the telehealth flexibilities permanently. In the House, the “CONNECT for Health Act” (H.R. 4189) sponsored by Ways and Means member Mike Thompson (D-CA) and the “Telehealth Modernization Act” (H.R. 7623) by Energy and Commerce member Buddy Carter (R-GA) would both make the pandemic-era rules permanent. Some key questions remain, including how much to pay for virtual care as compared to in-person care and whether telehealth access increases Medicare spending.

Nursing Faces Uphill Fight for Fiscal 2025 Workforce Funding

Congressional appropriators have started work on funding federal agencies and programs for the 2025 fiscal year starting on Oct. 1, although election-year campaigning virtually assures that lawmakers will need to extend current funding into a post-election lame duck session in November. Nonetheless, the House started last month with an ambitious plan to complete all 12 individual spending bills before the August congressional recess.

Appropriations Committee Chair Tom Cole (R-OK) released allocations in May that would reduce funding for the spending bill including the departments of Labor, Health and Human Services, and Education by as much as 11 percent, potentially threatening funding for nursing workforce programs under Title VIII of the Public Health Service Act – the primary source of federal support for nursing education. Senate appropriators have yet to agree on funding allocations and hope to start advancing bipartisan spending bills later this month.

Budget writers are working under spending caps imposed by the 2022 Inflation Reduction Act that would permit only a 1 percent increase in current funding, and House leader vowed to reject a $69 billion “side deal” that provided additional funds for domestic programs in fiscal 2024. President Joe Biden’s proposed fiscal 2025 budget included a $20 million increase in Title VIII funding, but without an agreement to get around the spending caps it may be difficult for those programs to keep funding at the current level of $300.5 million.

Administration Opens Health Coverage To Immigrants

President Biden announced a final rule last month that will open up Affordable Care Act marketplace health plans to tens of thousands of immigrants who came to the U.S. as children but do not qualify for government health insurance because they lack legal status. Federal health officials estimate that roughly 100,000 people enrolled in the Deferred Action for Childhood Arrivals (DACA) program will sign up for subsidized plans through the health insurance marketplace over the next year under the rule, which the administration first proposed last year. The rule amends the definition of “lawfully present” to include DACA recipients, also known as Dreamers, for purposes of qualifying for marketplace subsidies and will take effect at the Nov. 1 beginning of the annual marketplace open enrollment period.

Administration Delays Action Banning Menthol In Cigarettes

The White House disappointed public health advocates in April by announcing that President Biden would delay the release of a final Food and Drug Administration rule to ban menthol cigarettes, a move likely to end any hope that the rule will be released before the November election. The decision to delay the ban – which had been under final review at the White House for more than six month – rather than completely abandoning it means that the administration could revive the rule if Biden wins reelection. The proposed ban drew fire from tobacco companies and other groups that argued an end to menthol cigarette sales could create an illicit market that would impact minorities the hardest, and some civil rights leaders feared that a prohibition would encourage over-policing of Black communities. Anti- smoking advocates argued that the ban would save hundreds of thousands of lives, and several prominent civil rights groups also backed the prohibition.

In Other News

Lawmakers Attempt to Revive Farm Bill Reauthorization
The House Agriculture Committee advanced Republicans’ 2024 farm bill last month after a lengthy markup that underscored the deep partisan divisions on the legislation, clouding its path forward. Four of the panel’s 25 Democrats ultimately joined Republicans in advancing the “Farm, Food, and National Security Act of 2024” (H.R. 8467) in what one member called an effort “to move the process along.” Democrats spent most of the markup attacking provisions of the legislation limiting future updates to the Thrifty Food Plan that would cut spending on the Supplemental Nutrition Assistance Program (SNAP) providing food benefits for low-income families by $27 billion over 10 years. NAPNAP and its chapters have joined nutrition advocates in urging Congress to strengthen SNAP benefits and reject proposed cuts.

Earlier in May, Senate Agriculture, Nutrition, and Forestry Committee Chair Debbie Stabenow (D-MI) released a section-by-section summary of a proposed farm bill that she described as “very mainstream,” incorporating more than 100 bipartisan bills. Her proposal would maintain the current requirement that the Agriculture Department reevaluate the Thrifty Food Plan every five years based on current food prices and dietary guidance – a review that resulted in a 21 percent increase in benefits in 2021. Stabenow has not released legislative text of her proposal and no markup has been scheduled.

Nursing Homes Challenge Minimum Staffing Standards
Long-term care groups filed suit last month to overturn the Biden administration’s regulations establishing the first-ever minimum staffing requirements for nursing homes, arguing that the administration overstepped its authority and warning that the rule “creates impossible-to-meet standards that will harm thousands of nursing homes and the vulnerable Americans they serve.” The rule requires all nursing homes receiving Medicare and Medicaid funding to provide a total of at least 3.48 hours of nursing care per resident per day, including defined periods from registered nurses and from nurse aides. The industry argued that homes are already struggling to fill open positions and that the staffing rule would require them to hire more than 100,000 additional nurses and nurse aides and could force some facilities to close. AARP, the nation’s largest seniors lobby, is leading efforts to support the rule.

Congressional Republicans have also proposed legislation to strike down the staffing rule. Reps. Greg Pence (R-IN) and Michelle Fischbach (R-MN) introduced a bill last month intended to overturn the rule under the Congressional Review Act, barring the agency from issuing any similar requirements. In March, the House Ways and Means Committee advanced legislation that would also block the rule from taking effect.

Senators Call for Warning Labels on Ultra-Processed Foods
Senate Health, Education, Labor, and Pensions Committee Chair Bernie Sanders (I-VT) and two Democrats introduced legislation in April that would require warning labels on ultra-processed and sugar-sweetened foods and beverages with the aim of tackling childhood diabetes and obesity and ban advertisements of “junk food” directed at children under 12. The “Childhood Diabetes Reduction Act of 2024” (S. 4195) would require the Food and Drug Administration to direct the industry to include boxed warnings regarding health and nutrient hazards for children, such as type 2 diabetes, obesity and tooth decay on ultra-processed foods, foods sweetened by sugar or artificial sweeteners, and food and beverage items containing “nutrients of concern” like added sugar, saturated fat or sodium. The bill would also require any advertisement of unhealthy foods targeted at under-12 children to be treated as an “unfair and deceptive” advertising practice by the Federal Trade Commission.