The HHS actions thus far “made crystal clear that any enforcement of this policy violates multiple federal laws. “I suspect the Administration is carefully weighing what else they can do and how quickly they can do it, looking for the widest positive impact while not creating challenges in other lawsuits,” Laura Durso, who was OCR chief of staff until earlier this year, said in an email. “They’re on thin ice in their announcement suggesting they have an authority that is actually blocked by court injunctions.”īut, other observers like Katie Keith, director of the health policy and the law initiative at Georgetown Law’s O’Neill Institute, pointed out that the injunctions are fairly narrow and only applied to specific plaintiffs. “I see no basis for them to be able to enforce Section 1557 against any state by reinterpreting sex to cover something that is not in the statute, which is what it sounds like they’re trying to,” said Roger Severino, former Trump administration OCR director. “Short of litigating or initiating funding removal or withdrawal proceedings, there’s not a whole lot in their toolkit,” said Joseph Wardenski, a former DOJ civil rights attorney.Ī supporter of Texas’s authority says the Biden administration is going too far by including transgender issues in the ACA’s nondiscrimination clause. It rarely uses its enforcement power against an entire state’s policy. The OCR enforces Section 1557 of the Affordable Care Act, which “prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in covered health programs or activities.” It typically handles complaints about actions of individual health providers or hospitals. Withdrawal of federal health funds for an entire state agency is possible, but it would be a “nuclear option,” said Leon Rodriguez, who ran the HHS’s Office of Civil Rights (OCR) under President Barack Obama. Greg Abbott’s policy.Īdvocates and former HHS officials said the likely road for the administration is an HHS or DOJ investigation and possible DOJ involvement in the ongoing litigation. New York Attorney General Letitia James called on the DOJ Wednesday to investigate Texas Gov.
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Opponents of the Texas policy are waiting for more federal actions.
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The administration has just two options to stop Texas from investigating families for child abuse if they are suspected of seeking gender-affirming care for transgender children-pulling federal health funding or suing the state.Īttorneys say both options are likely being discussed at the Departments of Justice and Health and Human Services, especially in light of strong statements and guidance opposing the state’s actions by President Joe Biden and his agencies March 2.Ī Texas judge last week issued an injunction against the state’s child protective services agency temporarily blocking it from investigating the parents of a transgender teen for alleged child abuse.