Final draft regulations for Nebraska gender care law released ahead of November hearing

LINCOLN, Neb. (Nebraska Examiner) — The Nebraska Department of Health and Human Services has released final regulations for the state’s minor gender care restrictions, with a slightly changed therapy definition and clarified pharmacy requirements.

The final draft regulations released Tuesday, required under Legislative Bill 574 passed in the spring, specify the requirements for Nebraskans under age 19 to receive puberty blockers or cross-sex hormones. Temporary regulations issued Oct. 1, the same day the restrictions took effect, expire Dec. 30 and can be extended for one 90-day period.

All LB 574 regulations do not restrict the specific care that patients started prior to Oct. 1. The law prohibits transition surgeries for minors after that date.

The new regulations will be the subject of a 12-hour hearing in Lincoln on Nov. 28 at the Lancaster Event Center, 4100 N. 84th St., from 7 a.m. to 7 p.m., or until there are no additional speakers. In-person comments will be limited to three minutes and could be limited to two minutes as necessary.

Written comments may be mailed, faxed or emailed no later than 11:59 p.m. on Nov. 27 to DHHS Legal Services — 402-742-2382 (fax) or dhhs.regulations@nebraska.gov.

“​​Please also note that all written and oral comments will be equally reviewed and considered by the Chief Medical Officer, Nebraska Department of Health and Human Services,” the hearing notice states.

Dr. Timothy Tesmer, the state’s chief medical officer, is charged with crafting the regulations before they are sent to Attorney General Mike Hilgers and Gov. Jim Pillen for final approval.

State regulations are tracked by the Nebraska Secretary of State’s Office here.

Therapy definition changed

The final regulations are largely the same as those released in October, including at least 40 hours of gender-identity-focused contact hours of therapy prior to the prescription of puberty-blocking drugs or cross-sex hormones. LB 574 requires this specific therapy.

The temporary regulations state the hours must be “clinically neutral and not in a gender-affirming or conversion context” and must include “sufficient parental or legal guardian support during and post treatment.”

However, the new regulations instead state the hours must:

• Be clinically objective and non-biased.
• Assess factors contributing to the patient’s presenting emotions, actions and beliefs.
• Not merely affirm the patient’s beliefs.

After an initial assessment of up to four consecutive hours, youths could not bank more than two hours per week of gender-identity-focused therapy. This pushes the minimum time to at least five months.

Youths must also live primarily as their preferred gender for at least six months and, after the prescriptions, receive at least one therapy hour every 90 days during ongoing treatment.

The restrictions state that to acquire informed patient consent, the following must be addressed:

• Discussion of appropriateness of care.
• All known side effects, including long-term effects on bone density, brain development, impact on fertility and sexual side effects.
• List of alternative treatments, including social, behavioral and physical alternatives.
• Whether the medication is being prescribed for off-label use or otherwise not approved by the U.S. Food and Drug Administration.

There is a seven-day waiting period between obtaining informed patient consent and the prescription of blockers or hormones.

Pharmacy, ID requirements

The regulations also clarify requirements for pharmacists for the dispensing of cross-sex hormones. This includes the prescriptions identifying the patient’s parent or legal guardian who must pick up the prescription after displaying a valid ID. Prescription drugs lawful for home delivery are also allowed to the parent or legal guardian’s address.

The specific section clarifies that pharmacists are not restricted in dispensing medications to minors who started hormones prior to Oct. 1.

Two weeks ago, State Sen. Megan Hunt of Omaha requested immediate guidance because some patients had been denied prescriptions. DHHS did not provide new guidance and pointed Hunt to its frequently asked questions pages on the law and the emergency regulations.

“What we need is clarity fast,” Hunt told the Nebraska Examiner on Oct. 4. “A lot of this could be avoided if DHHS had had a more transparent process in making these regulations.”

The Nov. 28 hearing notice estimates possible increased costs to the public because of the 40 therapy hours or for those who do not have a valid license or identification card. 

“The exact cost to the minor patient and parent is unknown and is likely contingent on the medical insurance available to the patient,” the hearing notice adds.

Nebraska DHHS in 1990 explicitly excluded “sex change procedures” in Medicaid coverage.

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