Letitia James hedshot
New York Attorney General Letitia James

A coalition of 23 state attorneys general are suing the Trump administration over a new rule they say allows healthcare discrimination targeting LGBTQ+ individuals, including those living in residential care settings.

In June, the Department of Health and Human Services announced that it had finalized a rule — Nondiscrimination in Health and Health Education Programs or Activities — that revoked transgender health protections established by the Obama administration. Critics said the rule undercuts protections that Section 1557 of the Affordable Care Act — which prohibit discrimination by any health care program against individuals on the basis of race, color, national origin, sex, disability or age — and would give health and long-term care providers a license to discriminate against the people they should be serving.

New York Attorney General Letitia James is leading the coalition of attorneys general in filing the suit in the U.S. District Court for the Southern District of New York against HHS, HHS Secretary Alex Azar and Roger Severino, who is head of the HHS Office of Civil Rights.

The coalition argues that the new rule is “arbitrary, capricious and contrary to law under the Administrative Procedure Act (APA), and that it violates the equal protection guarantee of the Fifth Amendment.” The suit states the new rule “would eviscerate the 2016 Rule and eliminate many of its core protections.”

James is joined in the suit by the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Wisconsin and Washington, D.C.

Before the rule was finalized, several organizations representing senior living expressed their concerns about the proposed rule during the comment phase, in which HHS received almost 156,000 comments.

In an August 2019 letter to the Centers for Medicare & Medicaid Services and HHS, LeadingAge said research estimates there are about 2.4 million adults aged 50 or more years who identify as LGBT — a figure expected to increase to 5 million by 2030. 

A survey of LGBT older adults from the National Senior Citizens Law Center, LeadingAge noted, found that this population is vulnerable to discrimination when receiving healthcare and long-term services and supports, including refusal of admission (22%, harassment from staff (15%) and visitor restrictions (6%). And a 2018 AARP survey found more than half of LBGT adults expressed concerns about facing abuse, neglect, refused/limited services and harassment if they needed LTSS, the organization said.

“People seeking health care and aging services should be able to do so without worry that their gender identity and/or alignment with sex stereotypes will affect their care,” LeadingAge wrote. “Both the actual experiences and the concerns expressed by LGBT older adults related to discrimination in health and LTSS settings demonstrates the need for protection against such discrimination by section 1557 and its associated rulemaking.”

LGBT elder advocacy group SAGE and the American Society on Aging, in an August 2019 letter to Azar and Severino, “strongly” opposed the proposed rule, which they said was unjustified and would strip away protections for older adults.

They noted that these problems are particularly acute for transgender older adults in residential care settings, who fear “staff may erase their identity by denying them hormone therapy or preventing them from using the appropriate restrooms.” 

“LGBT older adults and their loved ones already experience discrimination in long-term care facilities, such as nursing homes, ranging from verbal and physical harassment, to visiting restrictions and isolation, to being denied basic care such as a shower, or being discharged or refused admission,” SAGE wrote. “LGBT older adults particularly struggle in long-term care facilities as their identities are often disrespected and they can even be segregated from other patients due to homophobia and transphobia.”

The Leadership Council of Aging Organizations, a coalition of national nonprofit organizations representing older adults — including LeadingAge, AMDA–The Society for Post-Acute and Long-Term Care Medicine, PHI and SAGE — implored Severino to withdraw the rule, saying it it would undermine the interpretation of the Health Care Rights Law and “lead to discrimination, confusion and suffering.”

In a letter to Severino, LCAO stated that older adults of color, those with limited English proficiency and those who identify as LGBTQ often face discrimination in accessing healthcare services as well as pronounced health disparities and higher poverty rates.

“LGBTQ older adults may be denied care or provided inadequate care, or they may be afraid to seek care for fear of mistreatment,” the LCAO letter read. “Furthermore, transgender older adults in particular experience discrimination in coverage of medically necessary care related to gender transition, as well as in coverage of lifesaving tests and treatments typically associated with one gender.”