On September 3, after many years of advocacy, the federal Department of Health and Human Services’ Office of Civil Rights (OCR) announced proposed regulations on section 1557 of the Affordable Care Act.
This is a big deal. We’ve known since the Affordable Care Act became law in 2009 that section 1557, the part dealing with non-discrimination, had the potential to help a great many people. Section 1557 specifies that gender identity and gender expression are protected categories in the law, but without regulations to enforce it, we didn’t know what action the federal Health and Human Services (HHS) could take in response to discrimination claims, or how wide of a net 1557 cast.
These new regulations provide that clarity. But what does it mean for you?
First, let’s dive into the language of the law. Section 1557 says that any health setting that receives federal funding is prohibited from discriminating. In this case, “health setting” means not only what we’d typically think of – medical clinics, hospitals, doctors’ offices – but also certain types of health insurance. Since programs like Medicaid, Medicare, and private health insurance plans sold under the new state health exchanges all receive federal funding, this impacts a wide range of insurance as well as every hospital in the country and many social service agencies. Anyone who has experienced discrimination based on gender identity or gender expression in any of these settings has the right to file a complaint with HHS’s Office of Civil Rights, which will investigate the situation.
But what constitutes “discrimination?” What can the Office of Civil Rights do if their investigation finds that discrimination has occurred?
That’s where the proposed regulations come in. They make clear that a clinic refusing to treat a transgender person counts as discrimination. So does being harassed or threatened, and getting extra exams that are unnecessary or harsh.
The proposed rules also say that categorical exclusions of transition-related care in covered health insurance and health benefit plans constitute discrimination. This is HUGE, and means that the protections now available in 10 states + DC would apply nationally in a great many types of health insurance and other health plans.
And the penalty for insurance providers who violate the law? Well, for starters, OCR can send federal investigators in to look for violations—something no insurance company wants. Health insurance companies or health providers could also lose their federal funding, and the Department of Justice could bring legal proceedings against them. These proposed regulations are the real deal, protecting people’s right to access safe, affirming health care nationwide.
Now, you may notice I keep saying “proposed” rule and “proposed” regulations. That’s because the regulations are not yet finalized. Once OCR proposes regulations, there is a 60-day public comment period during which anyone can submit their thoughts (supporting OR opposing) on the regulation. These comments influence the revisions of the rule, and then OCR will publish the final rule, with whatever changes come from the public comments.
TLC and other advocacy organizations are preparing formal comments with legal argumentation and the like, but everyone living in the U.S. can comment as well. Our colleagues at the National Center for Transgender Equality have set up an easy form for you (yes, YOU!) to submit your own comments to show the department how and why these regulations are so important for our communities. Comments are due November 9, so don’t delay!
Anand Kalra is Transgender Law Center’s Health Programs Manager.