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California to HHS: LGB&T still covered here (Equality California update)

Implementation of anti-LGBTQ rule set for Aug. 18

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Harper Jean Tobin, center, speaks at a rally for transgender health in front of the White House on May 29, 2019. (Washington Blade photo by Michael Key)

This federal announcement would be laughable if it wasn’t official. The U.S. Department of Health and Human Services “respects the dignity of every human being, and as we have shown in our response to the pandemic, we vigorously protect and enforce the civil rights of all to the fullest extent permitted by our laws as passed by Congress. We are unwavering in our commitment to enforcing civil rights in healthcare,” said Roger Severino, director of the Office for Civil Rights at HHS on June 12 as he declared that Section 1557 of the Affordable Care Act would no longer prohibit discrimination on the basis of sexual orientation or gender identity.

The new Trump rule is scheduled to go into effect on Aug. 18.

Lambda Legal and the Human Rights Campaign immediately filed lawsuits on behalf of clients specifically impacted by the Trump administration’s callous move. The new rule would strip away the Obama administration’s May 2016 rule implementing Section 1557 that extended the legal interpretation of sex discrimination to include bias based on sexual orientation or gender identity, as well as discrimination based on race, color, national origin, sex, age or disability.

HHS focuses narrowly on the definition of “sex” in the healthcare program and Severino apparently decided to issue the new rule before the Supreme Court’s recent decision in Bostock v. Clayton County, which explicitly links sex discrimination to discrimination based on sexual orientation or gender identity.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” the Supreme Court ruled.

In the name of “Protecting Civil Rights in Healthcare, Restoring the Rule of Law, and Relieving Americans of Billions in Excessive Costs,” as they announced in their June 16 press release, neither Severino nor HHS Sec. Alex Azar II has backed off implementing the new rule, despite Bostock and the global coronavirus pandemic.

“LGBTQ people, and particularly transgender people, have been under constant attack by this federal administration.”

“Our plaintiffs, Tanya Walker and Cecilia Gentili — like many others in this country — should not be treated as second-class citizens by a federal administration hell bent on removing legal protections afforded to transgender people,” said Alphonso David, president of the Human Rights Campaign, after filing the 70-page complaint on June 26 in the United States District Court for the Eastern District of New York.

“It is time to end the constant fear and anxiety felt by many in the LGBTQ community that a person’s gender identity might determine the kind of medical care they receive.”

The Washington Blade reported that the HRC lawsuit on behalf of the two trans women of color, both of whom suffer from serious lung conditions, sought a preliminary injunction against the rule change “on the basis that it violated the law in the aftermath of the Bostock decision, exceeds statutory authority under the Affordable Care Act, is arbitrary and capricious and violates the right to equal protection under the Fifth Amendment.”

Lambda Legal and Steptoe & Johnson LLP also filed a lawsuit, Whitman-Walker Clinic v. HHS, in the United States District Court for the District of Columbia challenging the HHS rule on behalf of four doctors and six organizations, including [email protected] Coalition and the Los Angeles LGBT Center.

“The health care discrimination rule will hurt marginalized communities who already experience barriers to care, but especially those of us who are transgender, non-English speakers, immigrants, people of color and people living with disabilities and will have an even more serious impact on those of us who hold intersectional identities,” said Bamby Salcedo, President and CEO of the [email protected] Coalition.

“The [email protected] Coalition and its affiliated organizations such as Arianna’s Center in Florida and Puerto Rico and the Fundación Latinoamericana de Acción Social (FLAS) in Texas exist because of the already present challenges in our communities and because everyone deserves easy access to care that is respectful of who we are, compassionate and competent. Our lives depend on it and we’re going to fight for it,” she said.

On July 9, Lambda Legal filed for a preliminary injunction. “We are putting a stop to the Trump administration’s immoral and legally indefensible attacks on our communities. Section 1557 of the ACA is clear in its inclusion of LGBTQ people and other vulnerable communities and the law is on our side. This rule cannot be allowed to go into effect, not even for a moment,” Omar Gonzalez-Pagan, Senior Attorney and Health Care Strategist for Lambda Legal, said in a press release. “The Trump administration has a dismal record of handling the COVID-19 pandemic and a well-documented score of attacking the rights of LGBTQ people, particularly transgender persons. Now the Trump administration seeks to double-down on both by limiting access to health care for LGBTQ people and other vulnerable individuals in the midst of a global pandemic.”

Equality California, which has filed or been part of numerous lawsuits against the Trump Administration, was also angry at HHS and furious about their timing – the anniversary of the mass shooting at Pulse, the gay nightclub in Orlando, Florida.

“We’re considering all possible avenues to block this heartless, discriminatory rule from ripping healthcare away from millions of Americans during a global pandemic,” Equality California Executive Director Rick Chavez Zbur said when HHS issued the final rule on June 12.

“The Trump-Pence Administration’s response to COVID-19 has ranged from incompetent to illogical to reckless. But this is a new low. To roll back healthcare protections for LGBTQ+ patients in the middle of a global pandemic is heartless and cruel. But to do so on the fourth anniversary of the mass shooting at Pulse Nightclub in Orlando is especially despicable.”

Zbur added: “Transgender and gender-nonconforming people deserve healthcare. Gay, lesbian, bisexual and queer people deserve healthcare. People with disabilities and people for whom English is not their first language deserve health care. No one should be denied this basic human right because of who they are or who they love. Shame on Donald Trump and his administration for saying otherwise.”

Equality California trans member Darren Stanley Lazor (photo courtesy Equality California)

On July 10, Equality California, representing trans member Darren Stanley Lazor, upped the ante in another federal court joining National Women’s Law CenterTransgender Law CenterTransgender Legal Defense & Education FundHarvard Law School Center for Health Law and Policy Innovation and the other plaintiffs in BAGLY v. HHS in Boston.

In their press release, Equality California briefly laid out the horror Lazor has had to endure:

“Darren lives in Ohio, where he has experienced extensive healthcare discrimination based on his gender identity. For example, in 2012, Darren sought treatment for symptoms that later turned out to be endometriosis and a large ovarian cyst. Darren was denied treatment by four healthcare providers because of his transgender status before finally receiving treatment for his life-threatening condition.

 

In December 2017, Darren began experiencing shortness of breath as the symptom of a recurring health problem. He returned to the emergency room closest to his home where he once again experienced a hostile and disrespectful hospital staff who discriminated against him in several ways, from misgendering his hospital bracelet as female, to making audible expressions of disgust when affixing EKG stickers near Darren’s mastectomy scars, to ignoring him in the treatment room with no explanation.

 

When the Trump-Pence Administration issued its decision to undermine LGBTQ+ nondiscrimination protections in the Affordable Care Act, Darren decided to step forward and share his story as a plaintiff in BAGLY v. HHS to ensure that no one else will be denied life-saving healthcare or be discriminated against simply because of who they are.”

That may have prompted the California Department of Managed Health Care (DMHC) to ‘affirm its commitment to protect consumers’ healthcare rights, including the right to be protected from discrimination based on categories like gender identity and sexual orientation that are enshrined in California law,” according to a DMHC email distributed to LA County healthcare providers and policy makers.

“The DMHC Nondiscrimination Statement was issued in response to the finalized rule issued by the U.S. Department of Health and Human Services that eliminated regulations that protected individuals from discrimination based on categories like gender identity and sexual orientation,” DMHC’s Marisa Ramos wrote in a “Dear Colleagues” letter. “The rule also eliminated a federal requirement that health plans include information about the availability of language assistance services for people with limited English proficiency (LEP).”

The DMHC statement reads, in part: “Notwithstanding the new federal rule, all California-licensed health plans must continue to comply with California law, which protects all Californians from discrimination based on, among other things, gender identity and sexual orientation. Likewise, California-licensed health plans must continue to comply with California’s requirements to provide enrollees with notice of the availability of free language assistance services in English and the top 15 languages spoken by LEP individuals in California.”

Out California Insurance Commissioner Ricardo Lara also re-issued the statement he sent June 15 to “All Health Insurance Companies, All Licensed Insurance Producers, and Other Licensees and Interested Parties” alerting them to comply with California’s Health Insurance Anti-Discrimination Protections – specifically noting that the HHS federal rule does not preempt state law.

Health insurance that is regulated by the California Department of Insurance (CDI) “remains subject to California’s antidiscrimination law. Consequently, health insurers must continue to comply with the existing antidiscrimination standards in California law, beyond the minimum requirements of federal law,” he said. Lara’s Notice to insurance carriers notes that state anti-discrimination requirements include the following:

  • “Anti-discrimination and language and disability assistance services notification requirements, including a that “[a]n insurer does not discriminate on the basis of race, color, national origin, ancestry, religion, sex, marital status, gender, gender identity, sexual orientation, age, or disability.”

  • A  prohibition against discriminating based on an insured or prospective insured person’s actual or perceived gender identity, or on the basis that the insured or prospective insured is a transgender person, including discrimination in the following: denying, cancelling, limiting or refusing to issue or renew an insurance policy; premium rating; designating gender identity or transgender identity as a pre-existing condition for the purpose of denying or limiting coverage; denying or limiting coverage or denying a claim for the following services due to gender identity or because the insured is a transgender person; health care services related to gender transition if coverage is available under the policy for such services when not related to gender transition; including but not limited to reconstructive surgery; health care services ordinarily or exclusively available to individuals of one sex when the denial or limitation is due only to the fact that the insured person is enrolled as belonging to the other sex or has undergone, or is in the process of undergoing, gender transition.”

Lara says the CDI will continue to “vigorously enforce these and other existing provisions of California law to protect Californians against wrongful discrimination.”

Anyone who thinks they have been subject to unlawful discrimination should contact the Department’s Consumer Complaint Center at 1-800-927-4357, or submit a complaint through the Department’s website at www.insurance.ca.gov.

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CDC eases indoor mask guidance for fully vaccinated people

L.A. won’t immediately follow CDC’s relaxed mask rules

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CDC Headquarters in Atlanta, GA (Blade file photo)

WASHINGTON – The Centers for Disease Control and Prevention, (CDC) issued new guidance Thursday that eases mask wearing indoors for fully vaccinated people in most instances except for extremely crowded circumstances.

The new guidance still calls for wearing masks in crowded indoor settings like buses, planes, hospitals, prisons and homeless shelters but will help clear the way for reopening workplaces, schools, and other venues — even removing the need for masks or social distancing for those who are fully vaccinated, the Associated Press reported.

“We have all longed for this moment — when we can get back to some sense of normalcy,” said Dr. Rochelle Walensky, the director of the CDC.

President Joe Biden reflecting on the new CDC guidance that fully vaccinated people can go without masks said; “I think it’s a great milestone, a great day.” The President credited the full-court press by officials to get as many Americans vaccinated as possible in a short period of time as a contributing factor. Biden noted that as of Thursday, the U.S. has administered 250 million shots in 114 days.

He added, “The American people have never ever ever let their country down.”
Biden also stressed: “If you are fully vaccinated, you no longer need to wear a mask.” and then he also said if you see someone wearing a mask, “please treat them with kindness and respect.”

Walensky announced the new guidance on Thursday afternoon at a White House briefing, crediting the change to millions of Americans who are getting vaccinated. She added that the CDC changes reflected on the latest science about how well the vaccines are working preventing further spread of the cornavirus.

“Anyone who is fully vaccinated can participate in indoor and outdoor activities -– large or small — without wearing a mask or physically distancing,” Walensky said. “If you are fully vaccinated, you can start doing the things that you had stopped doing because of the pandemic.”

There are some caveats the Associated Press noted pointing out the CDC Director encouraged people who have weak immune systems, such as from organ transplants or cancer treatment, to talk with their doctors before shedding their masks. That’s because of continued uncertainty about whether the vaccines can rev up a weakened immune system as well as they do normal, healthy ones.

Los Angeles County officials said Thursday the latest guidance from federal officials allowing fully vaccinated people to stop wearing masks in most places will not be effective in California immediately. The state and county will review the U.S. Centers for Disease Control and Prevention’s recommendations in order to “make sensible adjustments to the orders that are currently in place,” L.A. County Public Health Director Barbara Ferrer said.

The California Division of Occupational Safety and Health’s mask-wearing requirements at businesses – including restaurants and supermarkets – remain in effect, and it could be a week or more before substantive changes to mask-wearing orders are implemented locally.

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LA County to offer vaccinations for 12-15 year old kids Thursday

The American Academy of Pediatrics urged that kids 12 and older get the Pfizer vaccine

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LOS ANGELES – Starting on Thursday the Los Angeles County Department of Public Health will begin offering the Pfizer-BioNTech vaccine, a two-shot regimen at the vaccine sites run by L.A. County that offer the Pfizer vaccine, for 12 to 15-year-olds.

Pfizer’s vaccine has been used for months in people 16 and older, and earlier this week the Food and Drug Administration cleared its use for those as young as age 12.  The CDC advisory panel on Wednesday noted that it affirmed the recommendation by the U.S. Food & Drug Administration (FDA) earlier this week.

The Associated Press reported that the CDC until now has recommended not getting other vaccinations within two weeks of a COVID-19 shot, mostly as a precaution so that safety monitors could spot if any unexpected side effects cropped up.

But the CDC said Wednesday it is changing that advice because the COVID-19 vaccines have proved very safe — and that health workers can decide to give another needed vaccine at the same time for people of any age.

“The need for catch-up vaccination in coordination with COVID-19 vaccination is urgent as we plan for safe return to school,” CDC’s Dr. Kate Woodworth told the panel, citing millions of missed doses of vaccines against tetanus, whooping cough and other health threats.

The American Academy of Pediatrics on Wednesday also urged that kids 12 and older get the Pfizer vaccine — and agreed that it’s fine to give more than one vaccine at the same time, especially for kids who are behind on their regular vaccinations.

“With the CDC approval today, affirming the FDA recommendation, L.A. County will begin vaccinating youth 12 to 15 with the Pfizer vaccine tomorrow. We are grateful to the scientists, clinicians, and the young people who participated in clinical trials that helped the FDA and the CDC determine that these vaccines are safe and effective for this age group,” said Dr. Barbara Ferrer, Director of Public Health.

“The COVID-19 vaccine is the most powerful tool available to reduce transmission of COVID-19 and prevent hospitalizations and deaths from the virus.  Increasing the number of people vaccinated speeds up our recovery journey and allows us to safely participate in the summer activities we all love and miss,” she added.

Anyone younger than 18 should be accompanied by a parent, guardian or responsible adult, and present photo identification and verification of age, county public health officials said. Parents or teens with questions about the vaccine should contact their healthcare provider or visit the Public Health website for more information on vaccine safety and efficacy.

Dr. Janet Woodcock, the FDA’s acting commissioner offered answers to questions regarding the vaccine shots for 12-15 year olds during a call with reporters:

ARE THE SHOTS THE SAME AS THOSE FOR ADULTS?

Yes. The dose and the schedule are the same; the two shots are given three weeks apart.

WHERE CAN KIDS GET THE SHOTS?

Pharmacies, state sites and other places that are already vaccinating people 16 and older with the Pfizer vaccine should be able to give the shots to all authorized ages in most cases.

WILL KIDS NEED A GUARDIAN?

Parental consent will be needed, but exactly how it’s obtained could vary.

HOW WAS THE VACCINE VETTED FOR KIDS?

Pfizer’s late-stage vaccine study tested the safety and efficacy of the shots in about 44,000 people 16 and older. The study then enlisted about 2,200 children ages 12 to 15 to check for any differences in how the shots performed in that age group.

“This is just extending it down from 16 and 17 year olds, and getting further information,” Woodcock said.

WHY ONLY THE PFIZER VACCINE?

Because only Pfizer, which developed the vaccine with its German partner BioNTech, has completed studies in younger teens. Moderna recently said preliminary results from its study in 12- to 17-year-olds show strong protection and no serious side effects, but regulators still need to review the results before it can be offered to younger people.

WHAT SIDE EFFECTS ARE EXPECTED?

Common side effects were similar to those experienced by adults, and included fatigue, headache, muscle pain and fever. Except for pain in the arm where the needle is injected, the effects were likelier after the second shot.

CAN KIDS GET OTHER ROUTINE VACCINATIONS AT THE SAME TIME?

The Centers for Disease Control and Prevention said it’s updating its guidance to say other routine vaccinations can be given at the same time as the COVID-19 shots. It previously advised against other vaccinations within a two-week window so it could monitor people for potential side effects.

The American Academy of Pediatrics said it agrees with the position.

WHEN WILL YOUNGER KIDS BE ELIGIBLE?

It’s unclear how long the ongoing trials or regulatory reviews will take. But Dr. Anthony Fauci, the top U.S. infectious disease expert, recently suggested it could happen this year.

“We think by the time we get to the end of this year we will have enough information to vaccinate children of any age,” he said.

WHY SHOULD KIDS GET VACCINATED?

Even though children are far less likely to get severely ill if infected, health officials note the risk isn’t zero.

Vaccinating children is also key to ending the pandemic, since children can get infected and spread the virus to others, even if they don’t get sick themselves.

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LA County expected to hit herd immunity by mid summer

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Photo Credit: County of Los Angeles

LOS ANGELES – Los Angeles County could reach COVID-19 herd immunity among adults and the older teenagers by mid- to late July, public health officials announced Monday. Over the weekend LA Mayor Eric Garcetti announced that appointments are no longer needed for Angelenos to get COVID-19 vaccinations at any site run by the city.

Garcetti’s move is intended to give people who don’t have the time or technological resources to navigate online booking platforms a chance to get the shot.

The percentage of the population the County needs to vaccinate to achieve community immunity is unknown, however Public Health officials estimate it’s probably around 80%. Currently, 400,000 shots each week are getting into the arms of L.A. County residents, and there are over 2 million more first doses to go before 80% of all L.A. County residents 16 and older have received at least one shot.

At this rate, Public Health expects the County will reach this level of community immunity in mid- to late July and that assumes the County continues to at least have 400,000 people vaccinated each week. That would include both first doses that people need as well as their second doses.

This news came as Los Angeles Unified School District officials announced that attendance numbers at all grade levels in the District have been considerably lower than expected as extensive safety measures have failed to lure back the vast majority of families in the final weeks of school.

Only 7% of high school students, about 30% of elementary school children and 12% of middle school students have returned to campuses.

As of May 7, more than 8,492,810 doses of COVID-19 vaccine have been administered to people across Los Angeles County. Of these, 5,146,142 were first doses and 3,346,668 were second doses.

On Monday the U.S. Food & Drug Administration (FDA) expanded the emergency use authorization for the Pfizer COVID-19 vaccine for adolescents 12 to 15 years of age. The Pfizer vaccine is already authorized for people 16 years old and older.

Pfizer’s testing in adolescents “met our rigorous standards,” FDA vaccine chief Dr. Peter Marks said. “Having a vaccine authorized for a younger population is a critical step in continuing to lessen the immense public health burden caused by the COVID-19 pandemic.”

In a statement released Monday by the White House, President Joe Biden the FDA’s decision marked another important step in the nation’s march back to regular life.

“The light at the end of the tunnel is growing, and today it got a little brighter,” Biden said.

Los Angeles County will offer the Pfizer vaccine for 12 to 15-year-olds once the Centers for Disease Control and Prevention (CDC) affirms the FDA recommendation, which can happen as early as Wednesday. All adolescents 12-17 will need to be accompanied by a parent or guardian to get vaccinated.

To find a vaccination site near you, to make an appointment at vaccination sites, and much more, visit: www.VaccinateLACounty.com (English) and www.VacunateLosAngeles.com (Spanish). If you don’t have internet access, can’t use a computer, or you’re over 65, you can call 1-833-540-0473 for help finding an appointment or scheduling a home-visit if you are homebound. Vaccinations are always free and open to eligible residents and workers regardless of immigration status.

In the meantime, the Los Angeles County Department of Public Health and the Centers for Disease Control and Prevention say that unvaccinated people — including children — should continue taking precautions such as wearing masks indoors and keeping their distance from other unvaccinated people outside of their households.

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