By Melissa Attias, CQ Roll Call
September 3, 2015 -- Doctors and hospitals that treat Medicaid patients and insurance companies participating in health law marketplaces would be banned from discriminating against transgender people under rules proposed Thursday by the Department of Health and Human Services (HHS).
Health plans would be prohibited from issuing a blanket denial of services to help a person transition to another gender, although the insurers still could refuse to cover surgery or other care on a case-by-case basis if the decisions are based on a legitimate rationale.
The proposal, which stems from the Affordable Care Act, would affect providers or programs that receive federal funding and health plans that cover people in the insurance exchanges created by the health law, among others.
"The Department of Health and Human Service's proposed rules have the potential to be life-saving for transgender people," Mara Keisling, executive director of the National Center for Transgender Equality, an advocacy group, said in a statement. "These rules will help finally make the promise of the Affordable Care Act real for transgender people—that they can find affordable health insurance that covers the essential care they need and doesn't exclude care simply because of who they are."
Some insurers already cover these services, Keisling said, "because it is the right thing to do from a medical perspective, from a fairness perspective, and because it can save them money."
The proposal follows actions announced by the Defense Department earlier this summer to reassess its treatment of transgender individuals, including a study of the implications of allowing transgender individuals to serve openly in the military.
The HHS plan lays out the standards that the department would use as it implements the health law, the first federal law to bar gender-based discrimination in health care, according to HHS. The law also bans discrimination based on race, color, national origin, age or disability. While those protections have been enforced by the HHS' Office for Civil Rights since enactment, the proposal clarifies that individuals can pursue legal action under the law.
The proposal also would strengthen anti-discrimination protections for women, people with disabilities and others.
"This proposed rule is an important step to strengthen protections for people who have often been subject to discrimination in our health care system," HHS Secretary Sylvia Mathews Burwell said in a statement.
The proposal clarifies that no one can be denied care or coverage based on his or her gender identity, and that care tied to a specific sex cannot be limited because an individual identifies with another gender, according to a fact sheet. HHS officials said a provider cannot deny someone treatment for ovarian cancer because the individual identifies as a transgender man, for example.
The department is requesting feedback on whether the nondiscrimination provision should incorporate an exemption for religious groups, and if so, what its scope should be. The proposed rule will be open for public comment until Nov. 6.
Other issues addressed in the proposal focus on access to care for individuals with limited English proficiency and those with disabilities. One requirement would be for insurers and providers covered by the rule to post taglines in the 15 most common non-English languages spoken nationally to inform patients that translation services may be available.
The American Cancer Society Cancer Action Network (ACS CAN) praised the proposal as "an important first step" and expressed hope that the final rule "will specifically address types of benefit design that have the potential to be discriminatory, including designs with coverage exclusions, service limitations, cost sharing, waiting periods, and limited provider networks."
The group is concerned that insurers are charging sick patients more or limiting coverage in ways that the group believes is discriminatory. Anna Howard, policy principal at ACS CAN, said in a statement that the group will urge the administration to spell out in the final version of the rules specific examples of insurance plan coverage that would be deemed discriminatory "so that cancer patients, survivors and their loved ones have peace of mind that coverage for life-saving treatments will be available when they need them most."
