Modern Healthcare

HHS targets discrimination based on sex, gender identity

By Virgil Dickson
September 3, 2015

HHS proposed on Thursday to ban discrimination against transgender people throughout the healthcare system, carrying out anti-bias provisions in the Affordable Care Act.

The proposed rule (PDF) would apply to any provider or program that accepts federal dollars.

Most doctors would be covered, as would Medicaid and Medicare. Insurers that offer plans through HealthCare.gov would have to comply with the requirements in their plans off the health insurance exchange as well.

The rule does not explicitly require insurers to cover gender transition treatment like surgery. But insurers could face questions if they deny medically necessary services related to gender transition by a man who identifies as a woman, or a woman who identifies as a man.

The rule largely supports existing polices and law but clarifies that the protections will block discrimination based on sex, which the agency says includes gender identity.

For example, transgender people can now enter bathrooms or hospital wards consistent with the gender that they identify with.

Previously, civil rights laws enforced by HHS' Office for Civil Rights (OCR) barred discrimination based only on race, color, national origin, disability or age.

Overall, the rule is expected to cost the healthcare industry as well as state and federal agencies $558 million in training and administrative costs over its first few years of implementation, the agency estimates.

“We anticipate that a large number of providers may need to develop or revise policies or procedures to incorporate this prohibition,” according to the rule. “We further assume that one-third of health insurance issuers will need to develop or modify policies and procedures.”

The agency says that despite numerous anti-discriminatory policies and laws on the books, this rule was needed.

HHS' OCR receives 3,000 complaints a year.

“There continues to be a series of problems with discrimination in the healthcare arena,” Jocelyn Samuels, director of the OCR, said Thursday during a press call with reporters.

“This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our healthcare system," HHS Secretary Sylvia Burwell said in a statement.

When it comes to enforcing anti-discrimination policies, the first approach HHS will take is to always have the health entity voluntarily address the issue, Samuels said.

If non-compliance cannot be corrected by informal means, the ACA empowers HHS to suspend, terminate or refuse to grant or continue federal financial assistance to that entity, and depending on the nature of the case, it compels it to contact the Justice Department with a recommendation to enforce the law.

Response to the proposed rule has been positive. “(The rule) will help finally make the promise of the Affordable Care Act real for transgender people—that they can find affordable health insurance that covers the essential care they need and doesn't exclude care simply because of who they are,” Mara Keisling, executive director of National Center for Transgender Equality, said in a statement.

The proposed rule is open for public comment through Nov. 6.