Federal Agency Tackles Discrimination in Health Care

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A proposed rule would offer patients protection from certain types of discrimination.

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Nearly one in five transgender patients are unable to obtain health care, and almost one in three report putting off medical care, due to discrimination by medical providers. Other people may face discrimination based on their sex, age, race, or disability. But under a new proposed rule announced by the U.S. Department of Health and Human Services (HHS), patients may begin to have better access to care.

The proposed rule would implement a provision of the Affordable Care Act (ACA) that forbids discrimination based on sex, race, color, national origin, age, or disability in health programs and activities, but does not expressly prohibit discrimination against transgender patients.

The proposed rule would expand the definition of sex discrimination to include discrimination based on sex stereotypes and gender identity, extending legal protection to transgender patients. This means hospitals, providers, and insurance plans would be prohibited from denying or limiting coverage, imposing additional costs, or otherwise restricting or refusing access to care simply because an individual’s “gender identity is different from the sex assigned to that person at birth” or the individual does not “conform to social stereotypes associated with a particular gender.”

Under the proposed rule, health care entities would be required to treat patients according to their gender identities, determined by “an individual’s internal sense of gender, which may be different from an individual’s sex assigned at birth.” At the same time, health care entities would be prohibited from refusing to deliver or cover treatment that a transgender patient needs, even if that service is normally provided to individuals of a gender other than the one with which the patient identifies. For example, a patient who identifies as male but nevertheless needs treatment for ovarian cancer could not be denied these services.

The proposal would also have important implications for insurance enrollment and benefits. No individual could be denied enrollment in a plan because of sex or gender identity. Insurance companies would be prohibited from denying or limiting coverage based on an enrollee’s transgender status, and could not have categorical exclusions for services associated with gender dysphoria or gender transition.

Additionally, health insurance companies would be prohibited from restricting or denying specific health services associated with gender transition if these limitations were only applied when a patient seeks treatment for gender dysphoria or gender transition. Otherwise, health plans could conceivably discriminate against transgender patients without categorically excluding gender transition services.

Although HHS intends its proposed rule to be broad, one shortcoming is that it does not definitively address whether discrimination based on sexual orientation is sex discrimination. Julie Gonen, Policy Director of the National Center for Lesbian Rights, praised the proposed rule but also emphasized the importance of including discrimination based on sexual orientation in the final rule. HHS requested comments on whether sexual orientation should be included within the definition of sex discrimination.

In addition to protecting transgender patients from discrimination, the proposed rule would also preclude disparate treatment based on pregnancy, pregnancy termination, and other medical issues related to childbirth as sex discrimination. This protection would support provisions in the ACA that promote health insurance coverage of maternity care and contraception.

All of the above prohibitions on discriminatory health care delivery and coverage would also extend to discrimination based on sex or disability. For example, insurance coverage of inpatient care for a certain medical condition among men but not women would be a violation, as would a plan that covers bariatric surgery for all adults except those with certain disabilities.

The proposed rule would also address discrimination based on national origin. Specifically, it would require health care providers and insurance companies “to take reasonable steps” to ensure free language assistance services are available to individuals with limited English proficiency. To determine the extent of the language assistance services needed, the nature and importance of the information to be communicated would be weighed against other factors like the organization’s resources. In the proposal, HHS asked for comments on whether health care entities should be required to provide phone-based interpreter services in 150 languages.

The proposed rule would apply to all health programs and activities that receive any funding from HHS. This broad scope would cover federal and state-based health insurance exchanges created under the ACA, including in-person assistance in the exchanges, and any insurance company that offers a plan in an exchange whose enrollees receive a premium tax credit or cost sharing reduction. Insurance companies would have to ensure that all their plans, whether part of the ACA exchanges or not, comply with the proposed rule.

In addition to health insurance coverage, health programs and activities covered by the proposed rule include health education and delivery of health services, so providers, hospitals, and other health care facilities that receive Medicare and Medicaid funding would be covered.

Violations under the proposed rule could result in a loss of federal funding, and victims of discrimination would have a right to sue.

Despite the proposed rule’s breadth, commentators have pointed to some shortcomings. For example, according to experts, the proposed rule does not address if requiring exceedingly high cost sharing and copayments specifically for drugs associated with disabilities are forms of discrimination. HHS has already received an administrative complaint stating disproportionately high cost sharing arrangements for HIV/AIDS drugs constitute discrimination based on disability under the ACA.

For those who want to provide input on the proposed rule, the deadline to comment is November 9, 2015.