By CHRIS JOHNSON, Washington Blade
Nov 5 2009, 12:24 PM |
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As gay rights supporters praise the House’s recently unveiled health care bill for its LGBT and HIV/AIDS provisions, some acknowledge the Defense of Marriage Act could restrict benefits from flowing to LGBT people, depending on how the administration interprets the statute.
The $894 billion package, made public last week by House Speaker Nancy Pelosi, compiled the work of three committees that produced health care bills. It includes a government-run insurance option that could extend coverage to about 36 million uninsured Americans.
Rep. Tammy Baldwin (D-Wis.), the only out lesbian in Congress and an advocate for the health care reform bill, said she’s expecting House members to approve the legislation soon following floor debate.
But the bill, H.R. 3962, uses the terms “family” and “dependent,” and advocates say the new Health Choices Commissioner — a position established in the legislation to oversee the insurance exchange — could interpret this language to mean someone’s opposite-sex spouse, but not a same-sex spouse.
For example, the section describing the retiree reinsurance program — for which employer-based programs could submit claims to the government — says claims could be made on “employment based health benefits provided to a retiree or to the spouse, surviving spouse, or dependent of a retiree.”
Brian Moulton, the Human Rights Campaign’s chief legislative counsel, said the term “dependent” and “family” in the bill are “fairly open-ended” and “leave a lot of discretion to the new commissioner to define them.”
“Certainly, there is some use of the term ‘spouse’ in the bill in some of the provisions, and certainly DOMA would control that definition of spouse,” he said. “I think there are some areas where there’s a potential there won’t be access to some of the benefits.”
Moulton continued: “I think we’ll still run into areas once this becomes law where we have the sort of inequities that we face in many other [parts of] federal law, unfortunately, because of DOMA, which is obviously why DOMA repeal is so high on our list of priorities.”
Baldwin said passage of the health care reform bill would create “additional opportunities for the LGBT community,” but acknowledged, “if there is reference to spouse or marriage, and some benefit is conferred by virtue of that reference, we would run into a DOMA problem.”
Jerilyn Goodman, a Baldwin spokesperson, also said the Health Choices Commissioner could interpret “dependent” in a way that excludes same-sex couples.
“H.R. 3962, Affordable Health Care for America Act, does have the potential to interact with DOMA and affect the LGBT community,” she said. “Whether that is positive or negative, however, depends almost entirely on the administration.”
Another Democratic aide, who spoke on the condition of anonymity, also said it’s “up to the administration” to determine whether same-sex couples would be included in some parts of health care reform.
“Clearly, the only way to … ensure equality across the board is to repeal DOMA,” said the aide.
In an e-mail, HRC spokesperson Brad Luna declined to comment on other sections of the health care bill where DOMA may restrict benefits, and on whether future administrations could apply DOMA differently to health care matters.
Still, advocates are optimistic that the Health Choices Commissioner will interpret the terms “family” and “dependent” in a way that’s favorable to LGBT people.
“We’re certainly hopeful that those will be, as they’re further defined in regulation, done so in a way that’s not exclusive,” Moulton said. “I wouldn’t say it’s conclusive because I don’t know how the term ‘families’ and ‘dependent’ are actually going to end up being defined.”
Baldwin said passage of health care reform legislation would benefit many LGBT people.
“Unless you happen to work for an employer who has a domestic partnership policy for fringe benefits, you’re much more likely not to be able to insure a partner or your family,” she said. “The insurance exchange that’s being set up in the bill is going to reduce the level of uninsured that’s not only in the LGBT community, but in any other group that experiences a higher level of lack of insurance.”
And Carl Schmid, deputy executive director for the AIDS Institute, said the general health care expansion that’s afforded in the bill is particularly important to people with HIV/AIDS who can’t afford health insurance.
“This is great to expand care and treatment through the expansion of … Medicaid, creating private exchanges and also getting rid of those pre-existing conditions,” he said.
“That’s an immediate benefit to people living with HIV/AIDS.”
Despite some lingering questions, advocates have praised the merged House bill for adopting several provisions already approved by committees that address LGBT and HIV/AIDS issues, which include:
• general non-discrimination language inclusive of sexual orientation and gender identity that prohibits discrimination by health insurers;
• a provision enabling a new assistant secretary for health information to collect health data on disparate populations, including the LGBT community, and to open public health programs and grants focused on health disparities to cover the LGBT population;
• language eliminating taxes on employer provided health coverage for LGBT people who receive coverage from a same-sex partner under an employer’s plan;
• a provision allowing people with AIDS to count drugs they receive from AIDS Drug Assistance Programs toward out-of-pocket costs to qualify them for Medicare Part D catastrophic benefits;
• and language permitting state Medicaid programs to cover low-income people with HIV before they develop AIDS.
Baldwin said the data collection provision is particularly important for LGBT people because federal surveys collect health information on the basis of race or geographic location, but no such federal data exists for LGBT people.
“These federal funded surveys, none of them ask any questions about sexual orientation or gender identity, so we have this real huge gap in our knowledge about how the LGBT community fares in terms of health access and health outcomes,” she said. “So, in the data collection provisions in the bill, it will now include gathering data based on sexual orientation and gender identity.”
Grants that would become available as a result of this research, Baldwin said, would “address disparities that are revealed as they affect the LGBT community.”
Baldwin said the domestic partner tax equity benefit also is important to those who pay taxes on employer health benefits that don’t apply to opposite-sex couples.
“That’s a significant burden in terms of cost — and depending on what tax bracket they’re in, that can be a lot,” she said. “The tax burden on that employee is much more than their married counterpart, so there’s a provision in the bill that eliminates that tax inequality.”
Separately, Schmid praised the provision enabling Medicaid coverage for low-income people with HIV before they develop AIDS, calling it “an immediate benefit to people living with HIV.”
But he noted the language would only give states the option of extending Medicaid coverage to HIV-positive people — even though the federal government would provide matching grants — so the next step would be encouraging states to adopt the provision.
The provision would become effective upon enactment, but would sunset on Jan. 1, 2013. Schmid said after this time, the provision would be unnecessary because a general Medicaid expansion in the legislation would kick in, extending coverage to adults living under 150 percent of the federal poverty level.
Allison Herwitt, the Human Rights Campaign’s legislative director, said HRC worked with allies in the House committees considering the health care legislation — the Ways & Means Committee, the Education & Labor Committee and the Energy & Commerce Committee — to ensure these provisions would make it into the House bill.
She said gay lawmakers — Baldwin, who sits on the Energy & Commerce Committee, and Jared Polis (D-Colo.), who sits on the Education & Labor Committee — served as HRC’s point persons on these issues.
Rep. Jim McDermott (D-Wash.), the sponsor of domestic partner tax equity legislation, advocated for the issue from his position on the Ways & Means Committee, Herwitt said.
Senate bill expected
to lack key provisions
While activists celebrate the bill’s language, the merged Senate bill is not expected to bear as many LGBT or HIV/AIDS provisions because Senate committees working on health care reform didn’t include most of this language in the versions of the legislation they produced.
One exception is the benefit allowing people with AIDS to receive assistance in procuring drugs under Medicare Part D. On Oct. 1, the Senate Finance Committee adopted an amendment from Sen. Olympia Snowe (R-Maine) to include similar language in that committee’s version of the bill. Activists are expecting Senate Majority Leader Harry Reid to include this provision in the Senate combined version of the bill.
Jim Manley, a Reid spokesperson, said he expected Reid to make public the merged Senate bill this week. The bill was not released before Blade deadline.
Baldwin said the Senate bill won’t have as much LGBT-specific and HIV/AIDS language because the House specifically had champions for these provisions.
She noted that many of the provisions in the House health care legislation were based on standalone bills in that chamber. For example, McDermott sponsors domestic partner tax equity legislation in the House, and Baldwin sponsors an LGBT health care bill for non-discrimination and data collection — but no such standalone legislation exists in the Senate.
“There’s a champion in the House for all of these issues,” she said. “I don’t see any great objection in the Senate to these provisions; they just didn’t have a champion like we found in the House.”
The expected lack of this language in the Senate-merged bill means for these provisions to make it in the final bill, senators would need to amend their legislation on the floor or would have to agree to the House provisions in conference committee.
Herwitt said HRC’s strategy to make sure LGBT and HIV/AIDS provisions remain in the final version of the bill is to advocate for lawmakers to keep them in the conference report. She said she’s “optimistic” conferees would keep these provisions in the final bill.
HRC isn’t planning on pushing for a floor amendment to include these issues in the Senate bill, Herwitt said, although she isn’t ruling out such a measure.
Schmid said he didn’t know this week whether HIV/AIDS advocates would advocate for the inclusion of outstanding HIV/AIDS provisions as a Senate floor amendment or wait until the conference committee takes up the legislation.
He said advocating for Medicaid assistance for HIV-positive people on the Senate floor would be difficult because senators would have to find some way to offset the estimated $1 billion cost.
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