Last Friday, the US Department of Health and Human Services (HHS) issued a new rule banning providers and insurers that receive federal funds from discriminating against transgender people. The Nondiscrimination in Health Programs and Activities final rule, Section 1557 of the Affordable Care Act, is the first federal civil rights law to prohibit discrimination on the basis of sex.
“Today we welcome historic final regulations that pave the way for nationwide coverage of transition-related care and prohibits other forms of anti-LGBT discrimination in health care,” the National Center for Transgender Equality (NCTE) said in a blog post. The NCTE went on to say that the final rule “is one of the biggest wins ever for transgender people at the national level.”
Details of the final rule
The final rule forbids sex discrimination in health care by:
- Requiring that women be treated equally to men when receiving healthcare services.
- Prohibiting denial of healthcare coverage or health services based on a person’s sex; this includes discrimination based on pregnancy, gender identity or sex stereotyping.
The rule also protects people with disabilities and those with limited English proficiency by:
- Requiring covered entities to make electronic information and newly-constructed or altered facilities accessible to people with disabilities; appropriate auxiliary aids and services for people with disabilities must also be provided.
- Requiring covered entities to take reasonable steps to provide meaningful access to people with limited English proficiency. Covered entities are also encouraged to develop language access plans.
How the rule will affect payers
Under Section 1557, insurers may not, on a discriminatory basis:
- Deny, cancel, limit or refuse to issue or renew a health-related insurance plan or other health-related coverage.
- Deny or limit a claim or impose additional cost-sharing or other limitations or restrictions on coverage.
- Engage in discriminatory marketing practices or adopt or implement discriminatory benefit designs in health-related insurance or other health-related coverage.
- Deny or limit coverage or a claim (or impose additional cost-sharing or other limitations or restrictions on coverage) for sex-specific health services because the person seeking services identifies as another gender.
- Categorically exclude coverage for all health services related to gender transition; this includes denying or limiting coverage (or imposing additional cost-sharing or other limitations or restrictions on coverage) for specific health services related to gender transition.
Although insurers are not required to cover gender reassignment surgery, they are required to cover related medically-necessary services.
Potential complications
In most cases, when signing up for a health plan enrollees must identify as either a male or a female. However, a transgender person may identify as a male but still require some services that are only available to females (e.g., a mammogram); this could lead to unintentional claim denials due to data limitations. So insurers will need to find a way to work around those limitations.
Penalties for noncompliance
In an article for Modern Healthcare, Virgil Dickson said those who are found to be noncompliant with the new rule risk losing federal funding. “HHS may also contact the Justice Department with a recommendation to enforce the law if the discrimination is found to be a criminal offense,” he said.