While this week's U.S. Supreme Court ruling protects the LGBTQ+ community against discrimination in the workplace, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a rule last week that removed protections that had banned health care providers and health plans from discriminating against LGBTQ patients, women and others.
This removal of equal access and health coverage protections will harm populations that are especially vulnerable to discrimination, such as LGBTQ individuals.
The AMA opposed the OCR rule when it was proposed last year and, again, noted its continued opposition when the final version was released last week.
"The federal government should never make it more difficult for individuals to access health care—during a pandemic or any other time," said AMA President Susan R. Bailey, MD.
The rule in question concerns Section 1557 of the Affordable Care Act (ACA) (PDF) that was enacted in 2010. Section 1557 prohibits discrimination against individuals participating in an HHS-funded or administered program or receiving coverage from a health insurance marketplace plan.
The Obama administration issued a rule to implement Section 1557 in May 2016 that defined discrimination "on the basis of sex" to include discrimination based on sexual orientation, gender identity, and termination of a pregnancy—a position long-held by many federal agencies and courts, including the Supreme Court. The 2016 rule also included provisions for OCR to investigate complaints of such discrimination.
The rule took effect that July and has since been the subject of continuous litigation.
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The AMA has heard from physicians who billed Medicare fee for service in 2019 and should have been eligible for a general distribution payment from the Coronavirus Aid, Relief, and Economic Security (CARES) Act Provider Relief Fund yet have not received a payment to date. In its updated Frequently Asked Questions document (PDF), HHS outlines a couple of explanations, including:
- If the physician's tax identification number (TIN) identifies both a social security number of an individual Medicare provider and another Medicare provider's employer identification number, or
- If there was incomplete banking information and/or personal contact information
At the AMA's urging, HHS is working to determine eligibility for a Provider Relief Fund grant for these physicians.
HHS also clarified that physicians who billed Medicare fee-for-service in 2019 were ineligible for provider relief funding include if they were:
- Terminated from participation in Medicare or precluded from receiving payment through Medicare Advantage or Part D
- Currently excluded from participation in Medicare, Medicaid and other federal health care programs
- Currently have Medicare billing privileges revoked as determined by either CMS or the HHS Office of Inspector General
The AMA partnered with the American Academy of Physical Medicine and Rehabilitation, which wrote this letter, and more than 120 state and specialty societies in opposing a Centers for Medicare & Medicaid Services (CMS) proposal to allow non-physician practitioners to perform certain duties that are currently required to be performed by a rehabilitation physician in the FY 2021 Inpatient Rehabilitation Facility (IRF) Prospective Payment System (PPS) proposed rule. The AMA and others urge CMS not to finalize this proposal as it would undermine access to physician-led, team-based care in the rehabilitation setting, which is necessary for IRF patients who are extraordinarily vulnerable, complicated and require comprehensive and multi-layered care.
There is also a concern that if this rule is implemented, it will set a dangerous precedent for removing physician supervision requirements in other health care settings. The most effective approach to maximizing the unique and complementary skill sets of all health care professionals on a team to ensure patients achieve their care goals is to rely on physician leadership. Nurse practitioners and physician assistants play vital roles in providing care to patients as part of an interdisciplinary care team, but their skill set is not interchangeable with that of a fully trained physician.