New ACA Health Nondiscrimination Regulation & Its Impact on Insurers, Providers & LGB & Transgender Patients

Transgender Patients
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Today, The Fenway Institute released “What the new Affordable Care Act nondiscrimination rule means for providers and LGBT patients,” a policy brief outlining the significant impact a new rule of the U.S. Department of Health and Human Services Office of Civil Rights (OCR) is expected to have on the ability of transgender people to access health care. Implementation of the new Section 1557 rule, issued by OCR in May 2016, began on July 18. It prohibits discrimination on the basis of gender identity in health care facilities and programs receiving federal funding. The new rule also explicitly protects people who are non-binary or intersex.

“Numerous studies have shown that transgender people frequently face discriminatory treatment in health care facilities, including being subjected to rough or abusive treatment from providers, being blamed for their health conditions, or being denied service altogether,” said Tim Wang, MPH, LGBT Health Policy Analyst at the Fenway Institute and lead author of the report. “The Section 1557 rule will be essential for addressing this widespread discrimination against transgender people not just in health care but also in discrimination in insurance coverage. One critical component of the new rule is that it expressly prohibits insurance companies from denying coverage for medically necessary services related to gender transition if those services are covered for people who are not transgender.”

The policy brief describes the steps that health care providers and facilities must now take in order to ensure that they are in compliance with the new Section 1557 rule. These steps range from ensuring that gender identity is included in official nondiscrimination policies to providing professional training for clinical, administrative, and support staff in how to treat individuals in a manner consistent with their gender identity. The brief explains what the new rule means for insurance payers and coverage of transition-related medical care for transgender patients. The brief also provides information on what lesbian, gay, bisexual, and transgender patients can do if they experience discrimination in a health care setting.

While the new rule does not explicitly prohibit discrimination on the basis of sexual orientation, it does prohibit discrimination on the basis of sex stereotyping. The rule cites multiple cases from the Equal Employment Opportunity Commission (EEOC) and other federal court decisions that have determined that discrimination on the basis of sexual orientation can be considered a form of discrimination on the basis of sex stereotyping. HHS will continue to monitor legal developments in this area and issue further guidance regarding sexual orientation discrimination as needed. HHS is currently evaluating complaints of sexual orientation discrimination on the basis of sex stereotyping.

“This new rule comes at a critical time when strong federal leadership to defend and advance equitable access to affirming health care for LGBT people is needed,” said Stephen L. Boswell, MD, FACP, President and CEO of Fenway Health. “In 2016 alone, nearly 200 restrictive bills targeting the LGBT community in terms of access to healthcare and access to public spaces such as bathrooms have been filed in 32 states, and have passed and been signed into law in Indiana, Arkansas, Mississippi, Tennessee, and North Carolina. As federal law, the Section 1557 rule would override elements of these discriminatory anti-LGBT state laws.”

The policy brief, What the new Affordable Care Act nondiscrimination rule means for providers and LGBT patients is available here: http://goo.gl/bzPTGf.

Since 1971, Fenway Health has been working to make life healthier for the people in our neighborhood, the LGBT community, people living with HIV/AIDS and the broader population. The Fenway Institute at Fenway Health is an interdisciplinary center for research, training, education and policy development focusing on national and international health issues. Fenway’s Sidney Borum Jr. Health Center cares for youth and young adults ages 12 to 29 who may not feel comfortable going anywhere else, including those who are LGBT or just figuring things out; homeless; struggling with substance use; or living with HIV/AIDS. In 2013, AIDS Action Committee of Massachusetts joined the Fenway Health family, allowing both organizations to improve delivery of care and services across the state and beyond.

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