Gender-affirming bill awaits action in the House

A bill providing legal protections for medical providers giving gender-affirming care moved through committee March 27, but not before Sussex County legislators questioned why those protections are needed.

“We are so willing to protect providers on uncertain science. So, they may be treating individuals based on science, but the review from this august group says wait a minute, we should hold the brakes on this, and we should consider the complete array of treatment before [prescribing] puberty blockers,” said Rep. Jeff Hilovsky, R-Millsboro, citing a report from a pediatric group during the bill’s hearing in the House Health and Human Development Committee.

The sponsor of House Bill 346, Rep. Deshanna Neal, D-Wilmington, said that the bill only seeks to protect healthcare providers from civil complaints originating in states that have made gender-affirming care illegal, and it does not change Delaware’s law on parental consent. Neal said most surgeries are done after someone turns 18, and even then, a person has undergone years of counseling and discussions with healthcare providers before making that decision.

The bill also largely prohibits healthcare providers from disclosing communications and records concerning gender-affirming healthcare without the patient’s authorization in any civil action or proceeding; protects providers from out-of-state subpoenas; and prohibits insurance companies from taking any adverse action against healthcare professionals who provide gender-affirming healthcare services.

In one case, Neal said she knows of a transgender man who came to Delaware for gynecological care. 

“He was able to find an amazing ob/gyn who also helped him understand that with his family risk of ovarian and cervical cancer, he would need to be monitored. Without that care, what could have happened? It was not because he was trans; it was the affirming care he needed, and he was able to get it here because that’s what this state does,” Neal said.

Rep. Valeria Jones Giltner, R-Georgetown, questioned wording in the bill that she said would allow a noncustodial parent to bring a child to Delaware for care, even if it's against the custodial parent’s wishes.

“Now we’re providing protection to a medical practitioner,” she said. “We’re telling the medical practitioner that you don’t have to acknowledge who has custody. We’re telling them to ignore that.”

After questions arose over medical liability, House Attorney Leba Kauffman said the bill does not protect a healthcare provider against tort actions – a lawsuit filed as the result of an injury.

“We will [file a lawsuit] if it's related to a tort or negligence action related to the minor,” she said. “[The bill] doesn’t include if the board of medicine is going after a physician for negligence or unprofessional conduct … they can still investigate a physician for doing negligent activity.”

Neal also said the bill does not protect providers from malpractice. “Not from malpractice, they’ll still get in trouble for that,” Neal said.

But if they come from a state that has made care illegal, Neal said, the bill protects them from prosecution across state lines. 

In a final line of questioning, Jones Giltner said it appears that the bill is meant to serve as a potential revenue stream for healthcare facilities.

“I think this goes right back to the heart of who is this bill for. It is for the medical practitioners and the institutions like ChristianaCare that are running service lines trying to have a revenue-producing service line and not have the impact of increasing medical liability claims that would come out of lawsuits like this,” she said.

Expert witness Brett Herb, clinical program manager at ChristianaCare’s Gender Wellness Center, said he believes the center is neither making money nor losing it.

The bill awaits action in the House when the Legislature resumes meeting April 16 after a two-week break.

Awaiting governor signature

• SB 220 passed the House March 28 with 39 votes and two absent. The bill unanimously passed the Senate March 13 to cover third-party insurance payments for people who also qualify for Medicaid, including barring third parties from refusing payment for an item or service if it is approved under Medicaid. 

• HB 285 passed the Senate 16-5 March 28 to amend the Medical Marijuana Act by removing the requirement that a patient have a debilitating medical condition to qualify for a registry identification card, instead allowing health-care providers to make the determination of whether a patient has a diagnosed medical condition for which the patient would receive therapeutic or palliative benefit from the use of medical marijuana. The bill passed the House Jan. 25 by a 26-10 vote with one not voting and four absent.

Bills in committee

Senate Health & Social Services

• HB 348 sponsored by Rep. Pete Schwartzkopf, D-Rehoboth, passed the House March 26 with 36 votes, four absent and one not voting to remove the requirement for a lifeguard at a pool exclusively serving a residential or apartment community not accessible to the general public.  This legislation aligns the statutory and regulatory requirements so that the lifeguard requirement in a rental community is the same as for a single family residential community, hotel, motel, and campground.

• HB 355 passed the House March 28 with 38 votes and three absent to provide legal protections for financial institutions and other entities that provide financial or accounting services to cannabis-related businesses that are licensed or registered under Delaware law. Specifically, it clarifies that banks, credit unions, armored car services, and providers of accounting services are not subject to prosecution under Delaware law merely by providing lawful services to licensed businesses engaged in the production, distribution and sale of cannabis in Delaware. This Act aims to facilitate the operation of cannabis-related businesses by helping to ensure that such businesses have access to necessary financial and accounting services.

• SJR 6 would direct health care professional licensure boards to review their existing professional licensure application language to revise or remove all intrusive and stigmatizing language around mental health care and treatment and replace it with language that meets the threshold requirements of the Americans with Disabilities Act of 1990.

Senate Housing and Land Use

• SB 23 would require counties and municipalities in Delaware to develop ordinances that allow for the construction of in-law suites or garage apartments on single-family homes to help increase Delaware’s housing supply.

• SB 247 would protect residents of manufactured housing communities from landlords who seek to impose rent increases even while refusing to address outstanding health and safety violations.

Senate Judiciary Committee

• SS2 for SB 169 would create a process for compensating individuals who have been wrongfully convicted in the state. To obtain compensation, a petitioner must show they were pardoned, or, after the conviction was overturned, the charges were dismissed or the petitioner was acquitted on retrial; or the petitioner entered an Alford plea after the conviction was overturned and that the petitioner was innocent of the crimes for which the petitioner was convicted. The prosecuting agency can prevent compensation by showing that petitioners were accomplices to the crimes at issue, or that petitioners intentionally “took the fall” for the true perpetrators. Successful petitioners are awarded damages based on the amount of time they served sentences of incarceration, parole, or registration on the sex offender registry solely as a result of the wrongful convictions, as well as reimbursement of fines, fees, and costs related to the wrongful conviction. The act also provides an emergency stipend and post-release services for individuals who are released from incarceration and who receive pardons or whose convictions are overturned, vacated, or reversed.

Senate Labor Committee

• SB 229 would extend the right of employees to inspect their own personnel files to former employees, and updates the specific information included in personnel files that an employee may inspect.

• SB 255 would provide that a prime general contractor is jointly and severally liable for a violation of the Wage Payment and Collection Act that is committed by a subcontractor, regardless of whether the subcontractor is in a direct contractual relationship with the prime general contractor; authorizes the Attorney General to bring an action to collect wages under the Wage Payment and Collection Act; and provides that a prime general contractor is jointly or severally liable for a violation of the Delaware Contractor Registration Act by a subcontractor.

• SB 256 would clarify the Attorney General’s existing authority to enforce the state’s consumer protection laws, specifically the Attorney General’s ability to pursue nonpenalty civil remedies, such as damages and restitution, without having to show that a person’s violation of a law or regulation enforced by the Department of Justice’s Division of Consumer Protection was wilful.

Resolutions

• HR 42 passed the House to designate March 28 as opening day for baseball and softball.

• HCR 104 unanimously passed the House and Senate to make March 28 We the Veterans Day.

• HCR 106 passed both House and Senate to designate April 7-13 Delaware Library Week

• SCR 140 unanimously passed both House and Senate March 28 to honor World War II Black aviation units making up the Tuskegee Airmen and name 13 Delawareans who were members.

• SCR 139 unanimously passed the House and Senate March 28 making April 6 National Tartan Day

• HCR 110 unanimously passed the House and Senate March 28 proclaiming the fourth Thursday in March a National Tuskegee Airmen Commemoration Day.

• SCR 137 unanimously passed the House and Senate March 28 recognizing March 29 as National Vietnam War Veterans Day