Federal policy improvements for trans people (day 1 of 5)

Federal policy improvements for trans people (day 1 of 5)

We often don’t hear of all of the amazing policy changes that are happening that positively impact the lives of trans* and gender non-conforming people. This week, we’ll post some of these recent federal level advances.

Health and Human Services (HHS) has issued federal regulations barring discrimination on the bases of sexual orientation and gender identity in programs run with federal financial assistance. In 2006, the Centers for Medicare and Medicaid Services (CMS) issued regulations amending non-discrimination provisions to prohibit discrimination on the basis of sexual orientation in all Programs of All-Inclusive Care for the Elderly (PACE) facilities.[i] This includes state, local, and non-profit organizations that provide PACE services with federal funding from CMS.[ii] While the grounds of race, ethnicity, national origin, and disability are expressly covered by federal statutes, the other grounds were included solely based on HHS’s general authority to regulate the PACE program.[iii] The ground of sexual orientation was added by HHS in response to public comments, without discussion.[iv] In 2010, pursuant to its authority under 42 U.S.C. 1395x, HHS passed a new rule requiring all hospitals that participate in Medicare or Medicaid not to restrict or limit visitation rights based on sexual orientation or gender identity, among other factors.[v]

Last year, HHS considered a rule for the establishment of state insurance exchanges and qualified health plans under the Affordable Care Act (ACA).[vi] The rule, which was finalized and adopted in 2012, prohibits discrimination on certain grounds by the insurance exchanges and the plans offered through them.[vii] While existing statutory provisions prohibit discrimination in certain health programs and services on the bases of race, color, national origin, disability, age, and sex, [viii] the new HHS rule extends the same protections to the categories of sexual orientation and gender identity.[ix] The Department of Health and Human Services proposed these requirements pursuant to its authority to regulate the exchanges and qualified health plans under section 1321 of the ACA.

[i] Medicare and Medicaid Programs; Programs of All-Inclusive Care for the Elderly (PACE); Program Revisions, 71 Fed. Reg. 71244 (Dec. 8, 2006) (codified at 42 C.F.R. §460.98).
[ii] 42 C.F.R. §460.98.
[iii] 71 Fed. Reg. 71245 (Dec. 8, 2006).
[iv] “Two commenters requested we broaden the list of categories under which the PO cannot discrimination to include sexual orientation … [i]n response to this request, we are amending the language of §460.98(b)(3) to include sexual orientation.” 71 Fed. Reg. 71,283 (Dec. 8, 2006).
[v] 42 C.F.R. §482, 485.
[vi] Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans, 77 Fed. Reg. 18310-01 (Mar. 27, 2012) (codified at 45 C.F.R. § 155.120).
[vii] Id.
[viii] 42 U.S.C. §18116.
[ix] 45 C.F.R. § 155.120.