HHS has finalized a rule that bans discrimination against transgender people throughout the healthcare system, carrying out anti-bias provisions in the Affordable Care Act. The final rule comes as the U.S. Justice Department 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 healthcare 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. 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 rule does not explicitly require insurers to cover gender-transition treatment such as surgery. But insurers could face questions if they deny medically necessary services related to gender transition for a transgender individual. The rule largely supports existing policies and law but clarifies that the protections will block discrimination based on sex, which the agency says includes gender identity. For example, transgender individuals can now enter bathrooms or hospital wards consistent with their identifying gender.
Previously, 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 to continue federal funding to any organization that does not address noncompliance. 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 Office for Civil Rights will investigate any complaints.
Finalizing the rule during a period of debate over transgender rights in the U.S. might not be a coincidence.
The Obama administration last week also 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 certificates.
“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 was sent to school districts Friday.
The Justice Department has sued North Carolina over a bathroom access law that it said violates the rights of transgender people, a measure that Lynch likened to policies of racial segregation and efforts to deny gay couples the right to marry.
North Carolina Gov. Pat McCrory has argued that the state law is a “commonsense privacy policy” and that the Justice Department's position is “baseless and blatant overreach.” His administration sued the federal government hours before the state itself was sued.