New regs target healthcare for transgender patients

In the midst of changing attitudes regarding gender identity and sexuality, including gender transitioning and same-sex marriages, the Obama administration has proposed new regulations for the Affordable Care Act (ACA) to include gender identity under the umbrella banning sex discrimination in healthcare.

The rules clarify the standards that the Department of Health and Human Services (HHS) would apply in enforcing the protections found in Section 1557, which prohibits discrimination on the ground of race, color, national origin, sex, age, or disability. Under the proposed rules, Section 1557 also applies to the health insurance marketplace and health programs administered by HHS. Section 1557 is the first federal civil rights law to prohibit discrimination on the basis of sex in healthcare.  

"The proposed rule applies to every health program or activity that receives HHS funding, every health program or activity administered by HHS, such as the Indian Health Service or the Medicare program, and every health program or activity administered by an entity created by Title I of the ACA,” explains National Center for Lesbian Rights (NCLR) policy director Julie Gonen. “These rules will have a profound effect on the health and very lives of LGBT Americans. We can now see a day in the very near future when transgender people can get coverage for the medically necessary care that they need but for which they are too often denied health insurance coverage.”

Examples of covered entities include hospitals, health clinics, health insurance programs, state Medicaid agencies, community health centers, physician practices, home healthcare agencies, and the health insurance marketplaces. Both the federally-facilitated marketplaces and the state-based marketplaces are covered by Section 1557. Thus, if a managed care company or insurer offers plans through Medicare or on the exchanges, all of its plans, including those in the private market, are covered by the Section 1557 regulations.

Next: What the proposed rules mean for health plans

The proposed rules prohibit insurers from offering plans that contain coverage exclusions for the treatment of gender dysphoria. This includes prescriptions, surgical care, and other healthcare services that are otherwise offered under the plan.

“Similarly, plans need to ensure that their provider networks include professionals that specialize in working with transgender people to provide the competent care that is consistent with standards of care,” Gonen says. “Beyond eliminating coverage exclusions, insurers will need to ensure that transgender people are not denied coverage for routine care due to a mismatch between the gender listed on their insurance records and their anatomy.

“While the proposed rules do not contain explicit protections against discrimination based on sexual orientation, such discrimination is prohibited by Section 1557. We at NCLR and others in the LGBT community will be advocating strongly for the final rule to explicitly address sexual orientation discrimination; we urge managed care companies to proactively ensure that no one enrolled in their plans is subject to discrimination based on sexual orientation or gender identity,” Gonen continues.

Gonen encourages all health plans and insurance providers to take proactive steps to ensure that the policies they issue include comprehensive coverage for the full range of care needed by LGBT enrollees.

“For transgender enrollees, this would include eliminating blanket exclusions for the treatment of gender dysphoria, developing guidelines for approving coverage for those treatments that draws from the clinical experience of providers and current medical literature on the medically necessity of the requested care, ensuring that the plan’s provider network has professionals who are specialized in treating transgender people to provide those services, and implemented safeguards to prevent transgender people from being denied coverage for routine medical care,” she says.

For lesbian, gay, and bisexual enrollees, this would include extending coverage for fertility care and assistive reproduction technologies to same-sex couples. Managed care executives will also want to confirm that the requirements for enrolling a dependent on their plans to do not unintentionally discriminate against same-sex couples who may experience barriers to getting both parents’ names on birth certificates and obtaining other documents often used as proof of parentage, according to Gonen.