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How New HHS Policies Could Exacerbate Social Determinants of Health


Paul Nicolaus

As the Trump Administration takes measures to broaden the moral and religious rights of health care professionals, critics say these moves may exacerbate existing social determinants of health among LGBT patients and negatively impact health care expenditures.

On January 18, 2018, the Department of Health and Human Services’ (HHS) Office of Civil Rights (OCR) announced the creation of a new Conscience and Religious Freedom Division. The following day, OCR released details of a proposed rule intended to protect health care professionals who refuse to participate in procedures such as abortion, sterilization, or assisted suicide for moral or religious reasons.

“America’s doctors and nurses are dedicated to saving lives and should not be bullied out of the practice of medicine simply because they object to performing abortions against their conscience,” OCR Director Roger Severino, JD, said in a press statement. The proposed rule is intended to provide the new division with the enforcement tools needed to ensure conscience laws “are not empty words on paper, but guarantees of justice to victims of unlawful discrimination.”

While the Trump administration has framed the compliance of abortion, contraception, and sexual orientation nondiscrimination laws as discrimination against religious conservatives, opponents have pointed out that conscience objections could wind up extending to gender and sexual minorities and ultimately threaten the health and well-being of LGBT people.

“You have to look at the broader context in which this rule is proposed,” explained Sean Cahill, PhD, director of health policy research at The Fenway Institute, a Boston-based center focused on health issues for traditionally underserved communities. One cause for concern is that this type of religious refusal language has already appeared in bills that have been introduced into state legislatures, and in some cases, passed into law.

Mississippi law HB1523 allows workers to refuse to provide services based on their belief that marriage should be exclusively heterosexual, that sex should only occur in a heterosexual marriage, and that sex and gender are fixed at birth. This means a transgender patient could be refused gender affirmation treatments, for example, or a lesbian couple could be denied fertility services. While they may be less overt and more limited in scope, the states of Tennessee, Alabama, and Illinois also have laws allowing medical professionals to refuse to serve LGBT people.

Disparities May Intensify

The potential implications for the health of the LGBT population are extraordinary, said Stephen Russell, PhD, faculty member in the Human Development and Family Sciences department and the Population Research Center at the University of Texas at Austin, especially considering there are already clear health disparities across multiple dimensions. Research has revealed that mood and anxiety disorders, self-harm, and attempted suicide are more common among sexual minorities, for instance, and these individuals are also more likely to report alcohol disorders and behaviors such as tobacco and drug use.

“What we do know is that the structural conditions that shape our lives make a difference for our health and well-being,” Dr Russell said, and strong evidence has emerged over the course of the last decade linking the health of LGBT people to the social-political environment they live in. If this newly proposed rule is interpreted as a license to choose whom to treat, he added, it could have “profound implications for people’s felt safety and well-being.”

There are economic costs, too, considering a number of public health issues are linked to minority stress—a psychological term for the higher levels of chronic stress faced by members of marginalized groups. A report co-authored by Dr Russell and released by UCLA’s Williams Institute, estimates that if the state of Texas alone managed to reduce the disparity in depression rates between LGBT and non-LGBT citizens by just 25 percent, the state could save nearly $290 million every year (see table).

Factor in the array of other health issues that are also associated with minority stress and consider the impact nation-wide, and those figures climb dramatically. Rather than addressing the factors contributing to LGBT health disparities and reducing those gaps through legal protections and improved social climates, though, recent policy maneuvers appear to be headed in a different direction that would, in theory, widen health inequalities and leave even more money on the table.

More Reluctance, Worse Outcomes

If discrimination is allowed in health care settings, LGBT patients might think twice about disclosing sexual orientation and gender identity information. In addition to limiting the ability to collect valuable data on this population, quality of care would suffer. Lack of awareness on the part of providers lessens the chances that appropriate preventive screenings would be carried out, such as prostate exams given to transgender women.

There are also disease burden differences that can be factored into care with increased awareness of patient identity. Because lesbian and bisexual women have lower birth rates, for example, they have a higher risk of breast and ovarian cancer. But they’re less likely to receive routine care and take advantage of screenings than straight women, which likely equates to delayed diagnoses and poorer treatment outcomes.

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This type of reluctance was quantified in a 2017 survey conducted for National Public Radio, the Robert Wood Johnson Foundation, and the Harvard TH Chan School of Public Health, which found that roughly one in six LGBTQ individuals say they have avoided medical care, even when in need, due to fear of discrimination based on their identity.

If gender and sexual minorities are faced with healthcare organizations and settings that they can’t be assured are welcoming of them, there is a greater probability of avoiding and delaying care, said Sean O’Mahony, MB, BCh, BAO, a physician and associate professor at Rush University Medical Center. Presenting later on, with more advanced stages of illness, tends to require a greater utilization of acute care and lead to higher expenditures.

Dangers of Denial

Some supporters of the recent actions taken by the Trump administration highlight the importance of protecting the rights of all, including health care workers, and see the upside of connecting patients and providers who see eye to eye when it comes to important moral or religious issues.

“The new Division on Conscience and Religious Freedom’s goal is to ensure that the government protects every Americans’ conscience, and respects patients’ ability to find a doctor who shares their values,” Kevin Theriot, JD, senior counsel with Alliance Defending Freedom, a conservative Christian nonprofit organization, said in a statement to First Report Managed Care. “The Office of Civil Rights’ proposed rule simply brings the agency into conformity with its legal and constitutional obligation to respect long-standing conscience protections.”

Others see the inherent risks involved. The religious debate is honest debate among people with differing viewpoints, said Jack Meyer, PhD, senior fellow with Health Management Associates, an independent research and consulting firm, but “this is big money.” Managed care companies want primary and preventive care services to be easily accessible because they know it’s good for the health of their enrollees and they know it’s going to lead to significant savings, he said. From a public health point of view and a bottom line point of view, payers should be concerned about anything that makes it more difficult to access medical services. 

While some may argue that patients denied care because of their sexual orientation or gender identity should simply turn to another provider, this dynamic would likely play out differently in sparsely populated regions. In some of the areas Dr Meyer has worked in, a small handful of primary care physicians have served an entire county. In these settings, a refusal to provide care on the part of just one or two doctors could create significant access barriers. “That’s the concern I would have if I were a managed care executive,” he said.

Still others highlight concerns related to misinterpretations and erroneous denials of care. OCR’s actions—both the creation of a new division and the issuance of a proposed rule—signal a willingness to broadly interpret laws that authorize denials of care, said Jocelyn Samuels, JD, executive director of UCLA’s Williams Institute and former OCR director during the Obama administration.

“One of the concerns that I have,” she said, “is that it may lead providers to think that certain refusals of care are permissible when in fact they are not under the statute.” If an LGBT individual needs cardiac care, for example, there is nothing in the statutes underlying the proposed rule that would authorize a denial of care by a cardiologist based on the fact that the patient is LGBT. But she fears that providers could over-interpret the authorization and engage in refusals that are not justified under law.

If carried out, these hypothetical denials of care would lead to real health consequences for the patients involved and could carry legal repercussions. If health care providers have staff members who begin to refuse treatment to LGBT people and claims are filed in court as a result, some point out that there may be liability on the part of those providers. And that can lead to a financial toll down the road.

At the moment, however, there are still plenty of questions that remain about the intent and scope of this newly created division, according to UT Austin’s Dr Russell. “We just don’t know yet,” he said, so it will be important for managed care decision makers to watch and understand how these developments take shape moving forward.

For articles by First Report Managed Care, click here

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