On February 14, 2025, the Offices of the Governor and the New York State Attorney General issued joint guidance to private and non-profit organizations evaluating how to respond to requests from federal immigration authorities while ensuring the protections of individual rights. The guidance was issued in response to the recission of a policy under the Biden administration that immigration enforcement would not take place in “sensitive locations”, including churches, schools, and healthcare facilities. In a February 19, 2025 email transmitting the statement to providers licensed by the Office of Mental Health (OMH), OMH reminds providers that any release of health information to enforcement agents must comply with HIPAA and Mental Hygiene Law § 33.13, which strictly limits the disclosure of information to federal immigration authorities absent appropriate process. Indeed, OMH-licensed providers are reminded that the mere identification of an individual as a recipient of OMH-licensed services is itself considered confidential information. Healthcare providers are further reminded that there is no requirement to disclose PHI to immigration officials except pursuant to: 1) a valid court order, subpoena, or search warrant issued by a judge and specifically authorizing the disclosure of PHI; 2) a valid HIPAA authorization signed by the patient; or 3) other applicable legal mandate under state or federal law. There is no explicit requirement under federal or New York law to disclose patient information to immigration officers without a valid court order, subpoena, or search warrant.
On February 18, 2025, the New York State Department of Health (“NYSDOH”) issued a “Dear Chief Executive Officers and Administrators Letter ” addressing two Executive Orders issued by the Office of the President regarding the provision of gender-affirming care. The NYSDOH letter reviews temporary restraining orders issued by two federal courts pausing implementation of those portions of Executive Orders EO 14168 and EO 14187 that block funds for healthcare entities which provide gender-affirming care to patients under the age of 19, and further, sets forth the application of New York law to such services.
The NYSDOH letter reminds healthcare providers that New York law prohibits discrimination based on sexual orientation or gender identity or expression, including transgender status, in healthcare services and coverage. Further, refusing to provide services or withholding services to patients based on their gender identity or expression, as well as other protected characteristics, may be considered discrimination under Article I, Section 11 of the New York State Constitution, as well as the New York State Human Rights Law. The NYSDOH letter reiterates earlier statements made by New York State Attorney General Letitia James in a letter issued on February 3, 2025, indicating that withholding the availability of services from transgender individuals based on their gender identity or their diagnosis of gender dysphoria, while offering such services to cisgender individuals, is discrimination under New York law.
The NYSDOH letter also reminds hospitals and diagnostic and treatment centers of their legal obligations to ensure equitable continuity of care for patients whose care may be discontinued or paused. In accordance with Public Health Law §§ 2803(1)(g) and 10 NYCRR §§ 405.7 and 751.9, and the Patients’ Bill of Rights, facilities must arrange for transfers, provide discharge plans, and allow patients to participate in care planning and continuity of care when care is discontinued or paused.
On the federal front, on February 20, 2025, the Department of Health and Human Services’ Office of Civil Rights, as specifically directed in EO 14187, formally rescinded previous Departmental guidance on gender-affirming care contained in the “HHS Notice and Guidance on Gender Affirming Care, Civil Rights, and Patient Privacy” issued on March 2, 2022. The rescission refers to several specified court decisions and the explicit language of Section 1557 of the Affordable Care Act (“ACA”) as not supporting the extension of the ACA’s use of the term “sex” (when addressing prohibited discrimination) to discrimination based on “sexual orientation and gender identity.” In addition, the rescission asserts that “gender dysphoria” is likely not a “disability” as defined in Section 504 of the Rehabilitation Act and in the statutory definition[i], as was held by the District Court of the Northern District of Texas in its decision to vacate the 2022 Guidance. Finally, the recission directs HHS and the United States Attorney General to cooperatively issue new guidance to protect whistleblowers who may wish to take action to ensure compliance with the recission.
Hancock will provide updates on further related information on these topics. Please contact any of the attorneys in our Healthcare Industry Group with any questions.
[i] 29 U.S.C. § 705(20)(F)(i) and 45 CFR 84.4
