BY AJ TRAGER
FERNDALE – The Department of Health and Human Services and the Department of Civil Rights released a final rule May 13 codifying existing formal guidances in Section 1557 of the Affordable Care Act (ACA) – signaling a big shift in trans related healthcare.
The ACA now officially bans discrimination based on race, color, national origin, sex, age and physical or mental disability.
Section 1557 took effect in 2010 when the ACA was finalized but took six years for HHS and OCR to finally implement the regulations. In 2013 OCR, the branch charged with enforcing Section 1557, issued a request for information regarding individuals' and covered entities' experiences in complying with federal civil rights laws and issues of discrimination.
The new rule will be effective as of July 18, except for provisions affecting health insurance plan benefit design which will not take effect until the first day of the first plan year, beginning on or after Jan. 1, 2017.
The regulation is a sweeping win for the LGBT community and covers much under its scope. Under Section 1557, individuals seeking healthcare cannot be excluded from participating in, denied the benefits of, or subjected to discrimination under any health program or activity of which any part receives federal financial assistance (including Medicare and Medicaid), or any program or activity that is administered by an agency of the federal government or any entity established under Title I of the ACA.
A 2009 report by statista.com found that the U.S. has roughly 970,000 healthcare physicians. The regulatory analysis of Section 1557 found that 92 percent of those physicians will be required to comply with the LGBT-inclusive regulations. The rule does not apply to physicians who participate only in Part B, although it does cover all physicians who receive Medicaid or meaningful use information technology funding.
HHS also estimates Section 1557 will cover 133,343 facilitates, such as hospitals, home health agencies and nursing homes, through their participation in Medicare and Medicaid; 455,657 clinical laboratories that receive Medicaid; 1,300 community centers; 40 health professional training programs; Medicaid in public health agencies in each state and the territories; and at least 180 insurers that offer qualified health plans.
Section 1557 also requires that providers treat individuals in a manner consistent with their gender identity, including in access to healthcare facilities. Historically, health-related insurance plans or other health-related coverage, including Medicaid programs, have excluded coverage for all care related to gender dysphoria or care associated with gender transition and categorized such treatment as cosmetic or experimental. According to the new regulations, such across-the-board categorization is now recognized as outdated and not based on current standards of care.
The rule does not propose to require plans to cover any particular benefit or service such as top or bottom surgery or hormone therapy, but does regulate that a covered entity cannot have coverage that operates in a discriminatory manner. For instance, if Jim, a trans man, goes to his physician's office seeking hormone therapy as he begins his transition, Jim cannot be denied access to the gender appropriate bathroom and the insurance company cannot deny him hormone treatment as his gender on his birth certificate may not align with the gender on his medical records. He also cannot be denied access to a pap smear due to the gender marker on his medical documents.
Simultaneously, the new law bars healthcare providers from treating LGBT individuals differently than their heterosexual counterparts, and any negative treatment that results from the patient releasing information relating to their sexual orientation or gender identity will be seen as discriminatory.
Access: A Need For Cultural Competency Training
A major mission of Transgender Michigan is to provide healthcare professionals, including doctors and nurses, with LGBT cultural competency training. Executive Director Rachel Crandall is overjoyed that the federal government has finally issued these regulations but is cautious of their implementation. She would like to see strong cultural competency trainings being provided to medical staff so that trans men and women are even more likely to take care of their health related needs.
"I think Section 1557 is wonderful, and I think it will open up healthcare to so many of us. However, it may make it so that these healthcare providers who don't really understand trans men and women are required to give healthcare. I'm hoping that doctors would then get some training," Crandall said.
It's no secret that many in the LGBT community avoid going to the doctor for fear of being discriminated against or seen as subhuman. A 2014 Gallup poll revealed that LGBT Americans are more likely than non-LGBT Americans to report that they lack health insurance. Reasons behind the disparity include hostility towards the LGBT community for their sexual orientation or gender identity and a lack of access to healthcare due to financial restraints.
"Ignorance and just discrimination is really heavy. I remember when I was coming out, I was a member of an HMO, and my doctor tried to talk me out of being trans. Now that was over 20 years ago. But he was giving me one of these lectures, 'You know it really is hard to be male in our society…'" Crandall said.
Other members in the trans community, Crandall explains, have been thrown out of doctors' offices and greatly hesitate going in for check ups and their trans-related healthcare needs for fear of the reaction from the professionals in the office. So some turn to alternative means of getting their hormones.
"Rather than getting hormones at a doctor, they'll get hormones off the street. I was at the bar one Saturday night and someone was selling what they said were hormones right in the restroom. Someone once said one time they received what turned out to be motor oil. And there's the whole issue of if you're getting injectable hormones off the street, are you sharing hormone needles?" she said.
Crandall has directly trained many medical students and healthcare professionals in LGBT identities but says there is a great need for doctors to educate one another on LGBT issues and disparities.
"I've taught a couple of doctors and I've taught an awful lot of nurses; however, it's hard to get doctors to accept training," Crandall said. "It would be nice if it was from other doctors – who can really teach them what healthcare for trans men and women is all about and teach them about prescribing hormones. I really don't know if that's happening right now."
Then there's the religious freedom controversy. A major pushback for LGBT-inclusion is that many feel serving LGBT clients will violate their religious beliefs and in turn feel discriminated against themselves.
"It's going to be really interesting, and what about those doctors who really feel like being trans is against God?" she asks. "But I never thought that I would see this amount of visibility."
Despite her concerns, Crandall is hopeful that Section 1557 will lead to a more inclusive healthcare system and that, with the leadership of the federal government, the trans community will be more apt to seek health services from a local healthcare provider.
"I really am celebrating. It's amazing. However, I think the issues that we were discussing a minute ago are real," she said.
In the next few weeks Crandall will meet with a nursing class to discuss how nurses can treat trans clients and make them feel more comfortable seeking the healthcare that they need and why accessibility to healthcare has been a significant barrier for trans folks.
The prohibited grounds for discrimination are specified by Title VI of the Civil Rights Act of 1964 (Title VI), Title IX of the Education Amendments of 1972 (Title IX), the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973 (Section 504). Section 1557 does not apply to discrimination based on religion.
