As public debate rages on over the rights of lesbian, gay, bisexual, and transgender (LGBT) people—at work, at school, and in public—new federal regulations help ensure that LGBT people and their families are protected in at least one area of everyday life: when accessing health care.
LGBT people have long faced discrimination in the health care system. LGBT people have been denied coverage altogether, refused access to family or spousal coverage, and enrolled in plans with discriminatory exclusions used to deny coverage for transition-related care. LGBT people—and particularly transgender people—also face discrimination when using health care: 27 percent of transgender people and 8 percent of LGB people report being refused needed care altogether. These barriers exacerbate significant LGBT health disparities, including higher rates of tobacco use, depression, and HIV/AIDS, among others.
To help address these barriers, the Office for Civil Rights (OCR) within the U.S. Department of Health and Human Services (HHS) recently finalized new regulations to prohibit discrimination against LGBT people in much of the health care system. Section 1557—the Affordable Care Act’s (ACA’s) primary civil rights protection—prohibits individuals from being subject to discrimination, excluded from participation, or denied the benefits of federally funded health programs or activities based on race, color, national origin, sex, age, or disability.
In a final rule issued in May 2016, OCR confirmed that Section 1557’s sex-based nondiscrimination protections include discrimination against LGBT people as well as gender nonconforming, non-binary, and intersex people. As a result, many public and private insurance plans must remove transgender exclusions, providers can no longer turn individuals away because they are LGBT, and patients have the right to be placed in a hospital room or ward based on gender identity (rather than sex assigned at birth), among many other new protections. Most of these protections are already in effect or will go into effect beginning in January 2017.
The significance of these changes cannot be overstated: with this final rule, HHS has ushered in the most remarkable health care protections for LGBT people in history.
The scope of the rule is significant, applying to most entities that receive federal funding from HHS. In particular, Section 1557 applies to health insurers that offer a marketplace plan, a Medicare Advantage plan, a Medicare prescription drug plan, or a Medicaid managed care plan; state Medicaid and CHIP programs; student health plans; entities that receive Medicare or Medicaid payments (such as hospitals, nursing facilities, rural health clinics, physician’s practices, and community health centers); federally qualified health centers; public health agencies; and HHS health programs and activities (such as the Centers for Disease Control and Prevention (CDC)); among others.
To help illustrate the scope of Section 1557’s protections, OCR has released examples of enforcement actions. For instance, OCR entered into a voluntary resolution agreement with the Brooklyn Hospital Center after a transgender woman was placed in a hospital room with a male roommate against her wishes. And, in Colorado, a transgender woman filed a complaint against a CDC-funded program after it refused to cover her mammogram; in response, the CDC released new guidance that mammogram services are, in fact, covered for transgender women who have taken or are taking hormones.
Perhaps unsurprising to those familiar with the ACA’s history, OCR’s final rule was recently challenged in federal court. The lawsuit, brought by five states and religiously affiliated providers, argues that the rule violates the Administrative Procedures Act and a variety of constitutional and statutory provisions on religious freedom. Of particular note is that the suit was filed with the same judge who recently enjoined federal guidance on protections for transgender students. A number of members of Congress also recently raised concerns about the final rule in a letter to HHS. And, following the results of the 2016 election, Section 1557 could be affected by efforts to repeal or significantly revise the ACA—or by a new administration’s decision not to enforce the ACA.
These developments notwithstanding, Section 1557 has the potential to dramatically improve LGBT health equity by promoting the development of a health care system that is a safer and more affirming place for LGBT people nationwide.
This guest post was prepared by Katie Keith, JD, MPH, Adjunct Professor of Law at Georgetown University Law Center, and a Steering Committee Member of Out2Enroll.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
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