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Rule bans transgender discrimination in health care

Posted On: May. 13, 2016 12:00 AM CST

HHS has finalized a rule that bans discrimination against transgender people throughout the health care system, carrying out anti-bias provisions in the Affordable Care Act.

The final rule comes as the Department of Justice is in a heated fight with North Carolina, which recently passed a bill that would prevent transgender students from using bathrooms and locker rooms that correspond with their gender identity.

Complying with the rule is expected to be more costly than anticipated. After additional data analysis, the rule is expected to cost the health care industry as well as state and federal agencies $960 million in training and administrative costs over its first few years of implementation, the agency estimates. That’s up from $558 million outlined in the proposed rule.

The final rule would apply to any provider or program that accepts federal dollars. HHS received more than 2,000 letters on the proposal before the comment period closed on Nov. 9.

Most doctors would be covered, as would Medicaid and Medicare. Insurers that offer plans through would have to comply with the requirements in their plans off the health insurance exchange as well.

The rule does not explicitly require insurers to cover gender transition treatment like 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.

The rule largely supports existing polices and law but clarifies that the protections will block discrimination based on sex, which the agency says includes gender identity.

For example, transgender people can now enter bathrooms or hospital wards consistent with their identifying gender.

Previously, civil rights laws enforced by HHS’ Office for Civil Rights barred discrimination based only on race, color, national origin, disability or age.

The ACA empowers HHS to alert an offender and suspend, terminate or refuse or continue federal funding to any organization that does not address non-compliance. HHS may also contact the Justice Department with a recommendation to enforce the law if the discrimination is found to be a criminal offense.

The rule does not address whether the ACA offers added protections to patients who feel their sexual orientation results in discrimination by providers. However, the rule makes clear that the OCR will investigate any complaints.

School rules released

Finalizing the rule during a period of debate over the rights of transgender people in the U.S. might not be a coincidence.

The Obama administration Friday issued a directive that public schools must permit transgender students to use bathrooms and locker rooms consistent with their chosen gender identity, not the gender listed on their birth certificate.

“There is no room in our schools for discrimination of any kind, including discrimination against transgender students on the basis of their sex,” Attorney General Loretta Lynch said in a statement accompanying the directive, which is being sent to school districts Friday.

The Justice Department on Monday sued North Carolina over a bathroom access law that it said violates the rights of transgender people, a measure that Ms. Lynch likened to policies of racial segregation and efforts to deny gay couples the right to marry.

Virgil Dickson writes for Modern Healthcare, a sister publication of Business Insurance.