Bill to protect gender-affirming care recipients presents legal quandary

A bill intended to protect the identities of patients who have had abortions or received gender-affirming care in California may wind up getting hospitals in hot water for violating federal law if passed.

As CalMatters’ Ryan Sabalow and Kristen Hwang explain, the proposal would require medical providers or businesses to contact the California attorney general within seven days if they are served with any civil, criminal or regulatory inquiry or subpoena seeking “legally protected health care activity.” It would also require the recipient to alert patients whose records are being sought.

The attorney general would then have an additional 30 days to review the inquiry before the recipient could comply with the order. Those found violating the new rule could be fined up to $15,000.

The bill was introduced partly in response to the Trump administration issuing federal subpoenas last year to 20 medical providers across the U.S. The providers, which included Children’s Hospital Los Angeles, offered gender-affirming care for minors and the subpoenas demanded patients’ medical records. California Attorney General Rob Bonta is a co-sponsor of the measure.

Complying with the proposed law could put providers at risk of violating federal law by delaying their response to the feds’ subpoenas. Bill critics and some constitutional scholars also say the proposal may be standing on shaky legal ground.

Bill Essayli, a former Republican Califonia Assemblymember who oversees the U.S. Attorney’s Office in L.A., said the bill would be unconstitutional and “unenforceable under the Supremacy Clause,” which declares that federal law is superior over state law. Other legal experts agree.

• Leslie Gielow Jacobs, a law professor at University of the Pacific McGeorge School of Law: “It looks like the federal government could say you’re impeding their law enforcement.”

In a statement, Bonta’s office said that bills are subject to change as they make their way through the Legislature, and that the office “will address concerns as appropriate and needed” about the bill. The Assembly’s committee on public safety is scheduled to debate the bill on April 21.

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A bill that proponents say would ensure children would get the money they need from child support is raising concern among critics who say the proposal wrests power away from families, writes ChrisAnna Mink for CalMatters. 

Currently, when parents divorce, the parent who has custody of the children can choose to enroll in California’s department of child support services, which collects and distributes child support.

To make sure that child support arrangements don’t get neglected, which can put the child at risk for poverty, the bill would automatically enroll families into the department (though they can still opt out). 

But some families already choose to forego enrolling because they made their own arrangements — a delicate scenario that bill critics urge legislators to be mindful of.

• Rebecca Gonzalez, policy advocate for Western Center for Law and Poverty: “We think parents should be trusted to make the decision of what’s best for their family and not forced into the system … the system doesn’t work for everyone.”

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A federal appeals court handed dialysis providers a win last week, after it struck down parts of a 2019 state law capping how much companies can profit from certain privately insured patients, reports CalMatters’ Ana B. Ibarra.

The law limits the reimbursement rate that dialysis providers can receive for these patients who get assistance from nonprofit charities that help pay their insurance premiums. The law sets that cap to what Medicare pays, which is about three times lower than what private plans in the individual market currently pay. 

Dialysis providers DaVita Inc. and Fresenius Medical Care donate to the American Kidney Fund, a nonprofit that provides premium assistance to roughly 3,000 patients in California. Proponents of the law have accused these three entities of running a “profit maximizing scheme” through their ties with one another, which the law aims to curb.

The entities sued to block the law immediately after it was enacted. The 9th Circuit ruled that parts of the law violated the First Amendment by burdening the American Kidney Fund’s right to associate with the two providers. 

For now, the ruling leaves things how they were before the law passed, and patients who currently receive assistance from the American Kidney Fund will see no immediate changes.

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