HHS Final Rule on Discrimination is Out

Posted May, 13 2016 by Amanda Dunker

By: Ali Harris, LGBT Program Coordinator, Raising Women’s Voices – New York

Today the U.S. Department of Health and Human Services (HHS) released the final rule on Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs. One of the most significant components is related to discrimination based on sex, which it defines more clearly to include discrimination against people based on gender identity and sex stereotypes.  This means a lot of great things for transgender people – if your health insurance provider receives any HHS funding:

  • It cannot categorically deny care based on transgender status (New York along with 15 other states and the District of Columbia already require coverage for the treatment of gender dysphoria).
  • It cannot deny someone a health service that is normally covered for one gender just because the person in need of care identifies or is documented as a different gender (for example, someone who identifies as male may still need preventive services like pap smears).

Additionally, in facilities that receive HHS funding (which includes any provider, facility, or hospital contracted with Medicaid or Medicare), individuals may use the gender-specific facilities appropriate to their respective gender identities.

There are also some important issues left unresolved. One is whether discrimination based on an individual’s sexual orientation alone is legal discrimination under Section 1557. HHS qualified the rule’s ban on discrimination based on sex stereotyping as an appropriate venue to file sexual orientation discrimination complaints, but did not offer explicit protections.  HHS also suggested that collecting data about LGBT people is a good method to monitor compliance with the new regulation; however, the agency did not offer recommendations or mandates to collect this demographic information in health care settings. There are also some questions about how much the final rule applies to health programs with oversight from other agencies, such as self-insured employer-sponsored plans, ERISA plans, and plans administered through third parties (this analysis by the National Health Law Program provides some discussion about how the rule’s applicability as well as commentary on other parts of the rule).

Find HHS’s final rule here and press release here. HHS also released a set of fact sheets summarizing major issues addressed in the rules: sex discrimination, access for individuals with limited English language proficiency, accessibility for individuals with disabilities, and implications for marketplaces plans.

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