Mirroring a shift in society, the Obama administration proposed Thursday to ban discrimination against transgender people throughout the healthcare system. Once the proposed regulations are final, they should expand insurance coverage for gender transition and prohibit healthcare facilities from denying transgender people access to restrooms that match their individual gender identity.
The new protections are part of a broader rule from the Department of Health and Human Services to carry out anti-bias provisions of President Barack Obama’s healthcare law. In a first, the law specified that sex discrimination is prohibited in healthcare, and the regulation carries it a step further, clarifying that “gender identity” is included under that protective umbrella.
“This is a huge step,” said Michael Silverman, director of the Transgender Legal Defense and Education Fund in New York. “It covers a lot of ground.” The new transgender policy comes as social attitudes about sexuality and gender are undergoing major changes. The Supreme Court recognized a constitutional right for same-sex couples to marry, and the gender transition of Olympian Bruce Jenner from male to female — Caitlyn — has brought new awareness about a group often ostracized by society.
The long-delayed rule amounts to a manual for carrying out the health law’s prohibition against medical discrimination on the basis of race, color, national origin, sex, age, or disability. Those underlying provisions already are in effect. Jocelyn Samuels, head of the HHS Office for Civil Rights, said the rule does not explicitly require insurers to cover gender transition treatment, including surgery. But insurers could face questions if they deny medically necessary services related to gender transition by a man who identifies as a woman, or a woman who identifies as a man.
“It is basically a requirement that insurers use nondiscriminatory criteria,” Samuels told reporters. Advocates for transgender people note that insurers already pay for services such as hormone treatments and reconstructive surgery, but decline to cover them when they’re part of a gender transition.
“What the rule says is they cannot exclude transgender people from the services that other people have,” said Harper Jean Tobin, policy director for the National Center for Transgender Equality.
Currently, 10 states plus Washington, D.C., require private insurers to cover transgender health care, while six states plus the nation’s capital cover such services through their Medicaid programs, according to advocates.
The new requirements would have impact throughout the health care system because service providers who accept federal dollars would have to comply.
Medicare and Medicaid are the cornerstone of hospital finances. That means transgender people could not be restricted from access to bathrooms or hospital wards consistent with the gender that they identify with, Samuels said.
Most doctors would be covered. Insurers that offer plans through HealthCare.gov would have to comply with the requirements in their plans off the health insurance exchange as well.
The regulation may not be final for many months. The public comment period extends through Nov. 6, and officials are seeking comment on a range of difficult issues, including religious conscience protections for service providers and whether sexual orientation — whether a person is a gay man or a lesbian — should also be protected.
Other advocates were disappointed with a separate section of the rule addressing discriminatory insurance benefits. That can happen, for example, when an insurer requires patients to pay a large share of the cost for all drugs used to treat a given condition.
The AIDS Institute and the American Cancer Society Cancer Action Network said the regulation was not specific enough, and the final version needs to provide examples of benefit designs that would be considered discriminatory.
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