WASHINGTON — The Obama administration proposed a rule Thursday that would forbid most health insurers and medical providers to discriminate against transgender patients, including by prohibiting insurers from categorically denying coverage of care related to gender transition.
The proposal clarifies a civil rights provision of the Affordable Care Act that bans “any health program or activity” that receives federal funds from discriminating based on race, national origin, sex, age or disability. The proposed regulation expands on that broad language, specifying that the administration considers discrimination on the basis of gender identity a form of sex discrimination.
“This rule actually contains the most significant affirmation of the rights of transgender individuals of equal treatment in health care and health insurance that has existed anywhere in the law,” said Samuel Bagenstos, a law professor at the University of Michigan.
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The proposed rule would apply throughout the health care system — affecting most health insurers, hospitals, nursing homes and physicians. It says that the provision applies to any providers or insurers who receive “federal financial assistance,” and lists an array of funding streams that would make them subject to the rule.
Health insurers or medical providers who are found to violate the provision could risk losing their federal funding. They could also be subject to individual lawsuits from patients who think they are the victims of discrimination.
The scope of the proposed regulation — which must go through a public comment period before it takes effect — was larger than some experts expected. The insurance industry had asked regulators to use a narrower definition of federal financial assistance that would have subjected far fewer plans to the rule.
The proposal does not list a specific set of medical services that have to be covered under the civil rights provision of the health law. It says that health insurers can make decisions about whether care is medically necessary for individual patients, but they cannot impose blanket bans on covering services related to gender reassignment, as many do now. Transgender advocates said the language of the rule was a major victory.
“Until now, the promise of health reform has not really been reached for many transgender people,” said Harper Jean Tobin, the director of policy for the National Center for Transgender Equality. “It’s been very common to have these categorical exclusions that say there’s no coverage of anything related to gender transition, no matter how medically necessary. This says that in plans that are covered, which is a lot of public and private plans, that’s no longer permissible.”
The regulation also says that medical providers cannot discriminate against transgender patients, for example, by refusing to care for them or preventing them from using facilities that are consistent with their chosen gender.
Ms. Tobin said her organization heard frequently from transgender people who had faced discrimination in health care — or were simply afraid to seek medical care.
Mara Youdelman, a lawyer with the National Health Law Program, added that, for example, someone who was born female, identifies as a transgender male but has not had gender reassignment surgery, might be denied insurance coverage for a Pap smear without the proposed rule.
“There was nothing to prohibit the exclusion of those services by an insurer,” Ms. Youdelman said.
Ms. Youdelman said the proposed rule was significant because it “puts the meat on the bone” of a provision that for the first time prohibits sex discrimination in health care. For the other groups protected under the provision, Section 1557 of the Affordable Care Act, it merely “reiterates longstanding prohibitions” on discrimination that other laws, including Title VI of the Civil Rights Act, already provide.
“For the first time, you can’t discriminate in health care because of someone’s sex,” she said. “And the regulation that we got today greatly elucidates what’s expected.”
Though the proposed regulation spells out more specifics than the two-paragraph provision in the health law, Jocelyn Samuels, the director of the Office for Civil Rights at the Department of Health and Human Services, said that her office had already been responding to complaints and negotiating settlements when they determined discrimination had taken place.
For example, Ms. Samuels said her office had recently resolved a complaint that a transgender patient filed against Brooklyn Hospital Center, alleging she had been denied a room assignment consistent with her gender identity. Ms. Samuels also pointed to a case in which a male victim of domestic violence was denied services at a hospital because, she said, he did not fit “the traditional profile” of a domestic violence victim.
“Sadly, we have ample evidence that there continues to be a persistent problem with discrimination in the health care industry,” Ms. Samuels said during a telephone briefing with reporters. But while her office receives thousands of complaints each year about discrimination in health care, she added, the proposed rule “provides a very valuable tool for us to be able to appropriately address them.”
At least 10 states and the District of Columbia already require health insurers to cover some treatments for people undergoing gender transition, as do the health plans for federal workers and many large employers. Research suggests that the cost of providing treatments is relatively low. In a 2013 study of employer plans conducted by the Williams Institute at the Law School of the University of California, Los Angeles, fewer than one in every 20,000 employees used such services. The overall effect on insurance premiums was less than one percent.
“The resounding response was that it cost little or nothing,” said Jody L. Herman, a scholar at the institute and the author of the report.
The American Hospital Association and America’s Health Insurance Plans, the lobbying group for most private insurers, said they needed time to review the proposed rule.
Though the proposal is quite clear in its application to transgender rights, it is more vague on whether the law’s anti-discrimination provisions apply to gay, lesbian and bisexual patients. The regulation says that lawyers for the administration believe that discrimination on the basis of sexual orientation should be treated as a form of sex discrimination. But it also notes that court rulings are unclear on the question.
The proposal also specifies how insurers and medical providers must provide care for patients with disabilities or difficulty speaking English. It says that insurers and medical providers must provide some form of translation services for patients, and that they must accommodate disabilities in offices and in electronic communications, including websites.
The proposal said that the Department of Health and Human Services would like the public to comment on whether it needs to provide exceptions for religious organizations with “sincerely held religious beliefs” that conflict with some required services. It has made similar accommodations to another Affordable Care Act provision, one that required insurance coverage for contraception.
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