DHHS Proposes Rule Banning Health Service Discrimination Against Transgender People

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The U.S. Department of Health and Human Services (DHHS) last week introduced a regulation that would prohibit discrimination in healthcare access and insurance coverage on the basis of sex or gender identity, including denial of services related to gender transition or reassignment. The proposal also requires healthcare providers to improve communication services for people with disabilities or limited English language proficiency.

If enacted after a public comment period, the proposed rule, published in the Federal Register on September 8, will ban most medical providers, hospitals, other health facilities, and health insurers that receive federal financial assistance -- broadly defined to include Medicaid, Medicare, and state insurance marketplaces -- from denying services to transgender people.

Clarifying and extending civil rights protections in the Affordable Care Act, the new regulation will prevent insurers from categorically denying coverage of sex reassignment or gender confirmation procedures, and says providers must allow transgender people to use facilities consistent with their chosen gender identity.

"LGBT people have too often faced healthcare and coverage systems that provide inequitable and hostile treatment on the basis of their sexual orientation or gender identity," said Human Rights Campaign government affairs director David Stacy. "This proposed regulation will help address some of these disparities and is vitally important to help end discrimination against transgender and gender nonconforming people in healthcare and insurance."

Below is an edited excerpt from a DHHS press release describing the proposal in more detail.

HHS Takes Next Step in Advancing Health Equity Through the Affordable Care Act

Proposed rule implements new protections against sex discrimination; enhances language assistance; protects individuals with disabilities; and extends to insurers participating in Health Insurance Marketplaces

Washington, DC -- September 3, 2015 -- Today, the Department of Health and Human Services (HHS) issued a proposed rule to advance health equity and reduce disparities in health care. The proposed rule, Nondiscrimination in Health Programs and Activities, will assist some of the populations that have been most vulnerable to discrimination and will help provide those populations equal access to health care and health coverage. 

Section 1557 of the Affordable Care Act (ACA) extended civil rights protections banning sex discrimination to health programs and activities. Previously, civil rights laws enforced by HHS’s Office for Civil Rights (OCR) barred discrimination based only on race, color, national origin, disability, or age. The proposed rule also extends all civil rights obligations to the Health Insurance Marketplaces and HHS health programs and activities, and clarifies the standards HHS applies in implementing Section 1557 across all bases of discrimination.

The proposed rule establishes that the prohibition on sex discrimination includes discrimination based on gender identity. It also includes requirements for effective communication for individuals with disabilities and enhanced language assistance for people with limited English proficiency.

"This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system," Health and Human Services Secretary Sylvia M. Burwell said. "This is another example of this Administration’s commitment to giving every American access to the health care they deserve."

While OCR has already been accepting complaints under the ACA, the proposed rule makes clear that individuals can seek legal remedies for discrimination under Section 1557.

Today’s proposed rule applies to Health Insurance Marketplaces, any health program that HHS itself administers, and any health program or activity, any part of which receives funding from HHS, such as hospitals that accept Medicare patients or doctors who treat Medicaid patients. Finally, the proposed rule extends these nondiscrimination protections to individuals enrolled in plans offered by issuers participating in the Health Insurance Marketplaces and explicitly bars any marketing practices or benefit designs that discriminate on the basis of race, color, national origin, sex, age, or disability. All the plans of insurers participating in the Marketplace are covered by the proposed rule.

The proposed rule makes clear HHS’s commitment, as a matter of policy, to preventing discrimination based on sexual orientation, and requests comment on how a final rule can incorporate the most robust set of protections against discrimination that are supported by the courts on an ongoing basis. 

The proposed rule requests comment on whether Section 1557 should include an exemption for religious organizations and what the scope of any such exemption should be. Nothing in the proposed rule would affect the application of existing protections for religious beliefs and practices, such as provider conscience laws and the regulations issued under the ACA related to preventive health services.

The proposed rule includes a number of new protections. Among them:

The proposed rule is open for public comment through November 6, 2015 and is available at: https://www.federalregister.gov/public-inspection.

For more information, including a fact sheet and Frequently Asked Questions, visit:http://www.hhs.gov/ocr/civilrights/understanding/section1557/index.html.

9/9/15

Sources

Department of Health and Human Services. Nondiscrimination in Health Programs and Activities. Federal Register, September 8, 2015 (online September 1, 2015).

Department of Health and Human Services. HHS Takes Next Step in Advancing Health Equity Through the Affordable Care Act. Press release. September 3, 2015.

J Appleby. HHS Unveils Civil Rights Protections for Transgender Patients' Health Services. Kaiser Health News. September 3, 2015.

Human Rights Campaign. HHS Proposes Critical Regulation to Protect Transgender People From Discrimination in Healthcare.Press release. September 3, 2015.