Health and Human Services rule changes will improve transgender health care

After intense advocacy from LGBT groups, the Department of Health and Human Services has proposed a policy change that will allow transgender and gender diverse people the ability to pursue gender-confirming medical care free of discrimination.

National Center for Transgender Equality: New Proposed Federal Rules Will Help End Health Insurance Discrimination

When it passed five years ago, the Affordable Care Act, often called Obamacare, prohibited discrimination in federally-funded health settings based on race, national origin, age, disability, and sex. The Obama administration agency in charge of enforcing it, the Department of Health and Human Services (HHS), just released proposed rules that make it clear that transgender people are protected by this federal law, including when it comes to health insurance! The proposed rules would make illegal the practice of categorically excluding all gender transition-related health care from coverage, common in private health insurance plans, as well as in state Medicaid, Indian Health Service, and CHIP (Children’s Health Insurance Program) programs. Instead, plans will have to cover services for transgender people if they offer those services to non-transgender people.

The rule will apply to all health insurance plans sold on the state and federal exchanges, as well as any plan sold by a company with a federal contract or that is receiving federal funds. Some private health insurance plans that do not receive any type of federal financial assistance or federal government contracts may not be covered. The rule does not address non-HHS federal health programs such as veterans’ and military health care, but those agencies are responsible for applying Section 1557 to their programs.

Today’s announcement is the culmination of years of advocacy by the National Center for Transgender Equality, and if this rule is finalized it could result in one of the biggest wins of this administration. Back when the Affordable Care Act was being debated in Congress, NCTE worked to secure this non-discrimination provision, with the hope that someday it would be interpreted correctly to disallow discrimination against trans people in insurance. NCTE also worked behind the scenes successfully during the law’s passage to protect against any amendment that could have limited coverage for transition-related care.

HHS also said it is considering recognizing, as other federal agencies have done, that sex discrimination also includes bias based on sexual orientation. The proposed rules are not final; they now go to a public comment period for 60 days. The proposed rules contain other items NCTE had advocated for, including:

  • Transgender people have the right to be treated in a way that matches their identity when it comes to gender-specific facilities, such as bathrooms, or room assignment based on gender
  • Transgender people, regardless of the sex listed on their health record, have a right to gender-related care such as breast or prostate exams
  • Other important civil rights protections, including for pregnant individuals, new clarity for people with disabilities, and clearer standards for language access in health settings for non-English speakers.

Because of the language in the rule to ban exclusions for transition-related health care, which says that “categorical exclusions” are not allowed and that insurance companies have to cover for trans people the same services they cover for non-trans people, NCTE anticipates that some insurance companies will try to still exclude certain medically necessary treatments. Thus, even after the final rules come out, the fight will not be over.

The proposed rules are in line with the medical consensus that transition-related care should be covered. Studies indicate that covering transition-related care is of insignificant cost and has the potential to be cost-saving, as people who are provided this care are more likely to have increased overall mental health, greater HIV medication adherence, and less anxiety, depression, suicidality, and substance abuse.

Since the proposed rules are now in a public comment period, NCTE will soon be releasing information on how people can comment on the rules to support these trans protections and urge HHS to further strengthen the rule.

From the Advocate – “New HHS Rule Could Change the Game for Trans Healthcare“:

Today, after pressure from LGBT advocacy groups, the U.S. Department of Health and Human Services proposed a new policy that will enable transgender Americans to file claims of civil rights violations against physicians, insurers, and hospitals that fail to provide trans-affirmative healthcare care.

The policy clarifies the scope of the Affordable Care Act’s nondiscrimination clause, Section 1557. The proposed policy forbids insurers from denying transgender patients transition-related health care like hormone therapy, counseling, and surgical procedures that that have previously been considered aesthetic.

While the proposed ruling would exempt religious healthcare organizations by preserving the ACA’s “conscience clause,” the ruling’s new mandates are sweeping. The ruling will apply to all physicians, hospitals, and clinics that receive funding through Medicare and Medicaid, and all insurance companies that market services through the ACA’s digital exchange.

The proposed ruling marks an unprecedented push by the Obama administration to close loopholes in transgender civil rights by expanding access to trans-inclusive healthcare. “This will help ensure that trans people are free from many all-too-common forms of discrimination from health providers, including health insurance plans’ exclusion of coverage of sex reassignment procedures and outright refusals of care by doctors, medical clinics, hospitals and others based on simple, old-fashioned bias,” stated Whitman-Walker Health in a press release.

“Today, HHS has taken a major step to ensure that all transgender individuals will have access to life-saving, affirming care that is consistent with the prevailing standard of care. We applaud the agency for taking such a strong position and developing regulations that are consistent with the goal of Section 1557, which is to eradicate discrimination in healthcare,” the National Center for Lesbian Rights said in a statement. But NCLR added that, “in order to realize the full promise of Section 1557, we call also upon the HHS to prohibit discrimination on the basis of sexual orientation in its final regulations.”

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