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Online Extra: Breed, Herrera send joint letter urging HHS to withdraw proposed rule on ACA

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San Francisco Mayor London Breed joined City Attorney Dennis Herrera in sending a lengthy letter to the U.S. Department of Health and Human Services Office of Civil Rights opposing what they called a discriminatory rule change. Photo: Jane Philomen Cleland
San Francisco Mayor London Breed joined City Attorney Dennis Herrera in sending a lengthy letter to the U.S. Department of Health and Human Services Office of Civil Rights opposing what they called a discriminatory rule change. Photo: Jane Philomen Cleland  

San Francisco Mayor London Breed and City Attorney Dennis Herrera this week sent a letter to the U.S. Department of Health and Human Services urging it to withdraw a proposed rule that they say wrongly interprets federal law in a way that "will cause great harm to transgender individuals."

The proposed rule, Nondiscrimination in Health and Health Education Programs or Activities, seeks to roll back the protections under the Affordable Care Act's non-discrimination provision (also known as Section 1557) that prohibit discrimination in health care on the basis of sex.

Breed and Herrera's letter was just one of thousands of public comment sent to HHS this week. The Human Rights Campaign and Transgender Law Center announced that more than 130,000 comments against the proposed rule, which is known as Section 1557.

Earlier this month, gay California Insurance Commissioner Ricardo Lara (D) led a coalition of 16 other chief insurance regulators in condemning the proposal.

In their 10-page letter, submitted August 13 as official public comment to Section Chief Luben Montoya in the Health and Human Services Office for Civil Rights, Breed and Herrera wrote that the ACA "prohibits discrimination based on race, color, national origin, sex, age, and disability in health programs and activities receiving federal funds."

"Among other things, the 2016 regulations defined 'on the basis of sex' to include gender identity, and set forth requirements to ensure meaningful access for individuals with limited English proficiency," they wrote. "The proposed rule would entirely eliminate many of the anti-discrimination protections included in those regulations, contrary to substantive and procedural requirements of federal law and contrary to sound public health policy."

The mayor and city attorney went on to state that the proposal is "yet another in a series of attempted actions by the Trump administration to bypass federal law and roll back protections of vulnerable populations that Congress has adopted."

According to the letter, San Francisco officials are most concerned about: the elimination of gender identity and sex stereotyping from the definition of "sex;" the elimination of the prohibition against discrimination in health insurance; the weakening of language access standards for people with limited English proficiency; and the elimination of the prohibition against discrimination based on association.

Explaining how the proposal will harm trans and gender-nonconforming people, Breed and Herrera stated that San Francisco "remains committed to retaining its own gender-affirming policies related to the provision of care and insurance coverage, given its experience that non-discriminatory care is an essential, effective, and affordable public health policy."

The letter also stated that state and local laws protect transgender and gender-nonconforming people and that the federal proposed rule will not change that.

"Nonetheless, even with these state and local protections and policies remaining in place, the city remains deeply concerned that the proposed rule will cause profound harm to transgender and gender-nonconforming patients who seek care" through the San Francisco Health Network and the San Francisco Health Service System, which insures employees and retirees residing outside of the city.

Breed and Herrera noted that nearly 3,000 people are insured through the city and live outside of California. The proposed rule, they wrote, would make it harder for SFHSS enrollees in states without independent protections against gender identity discrimination in health care to access care in a non-discriminatory manner.

They wrote that trans and gender-nonconforming people "experience alarming rates of discrimination in health care — despite the existence of overlapping local, state, and federal protections." The proposed rule will lead to increased discrimination, they added.

Discussing how the proposal would affect more than just trans people, Breed and Herrera wrote, "it will also negatively impact public health more broadly." That includes delaying and avoiding accessing care for contagious diseases, including the flu and measles, which could lead to increased transmission in the community at large.

"The proposed rule will also hamper San Francisco's efforts to reduce HIV transmission and HIV-related deaths in San Francisco by 90% before 2020," Breed and Herrera wrote, referring to the city's Getting to Zero initiative.

The letter pointed out that trans women are HIV-positive at disproportionately high rates, with trans women of color having the highest rates of HIV. According to the letter, the San Francisco Department of Public Health estimates that there are at least 369 trans women living with HIV in the city.

The city estimates that there are about 15,952 people living in San Francisco with HIV.

"Transgender women living with HIV already have poorer HIV care outcomes compared to persons of other genders," the letter stated. "Moreover, transgender women living with HIV are already less likely to be virally suppressed and have the highest uninsured rate by gender of people living with HIV, at 27%."

Breed and Herrera went on to state the importance of PrEP and hormone replacement therapy being issued to trans patients at the same time in order to reduce the risk of HIV transmission in the trans community, and consequently, to the community at large. Getting patients on PrEP is part of Getting to Zero, as is getting people who do test positive for HIV on early treatment.

Addressing stigma, another component of Getting to Zero, Breed and Herrera noted that if it increases under the proposed rule, trans people could avoid accessing health care.


Breed and Herrera also wrote about the financial harm the proposed rule would have on the city through the SFHN, which is a safety net provider of direct health services to thousands of insured and uninsured residents.

Finally, the mayor and city attorney wrote that portions of the proposed rule exceed the Department of Health and Human Services' authority.

"The proposed rule has improperly characterized the additional changes as 'conforming amendments' without offering any legal, policy, or cost-benefit analysis about them and their impacts on various [Centers for Medicare and Medicaid Services] programs," they wrote. "In particular, the proposed rule offers no analysis of the impact these regulations have had during the many years that they have been in effect, or of the impact of changing them now."

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