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OCR Enforcement under Section 1557 of the Affordable Care Act Sex Discrimination Cases

Section 1557 is the civil rights provision of the Affordable Care Act and it prohibits discrimination on the basis of race, color, national origin, sex, disability, or age in certain health programs and activities.  The HHS Office for Civil Rights (OCR) is responsible for accepting and investigating Section 1557 complaints.  Section 1557 is the first federal civil rights law to prohibit discrimination on the basis of sex (which includes gender identity and sex stereotyping) in covered health programs and activities.    

On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al v. Burwell, enjoining the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. Accordingly, HHS’ Office for Civil Rights (HHS OCR) may not enforce these two provisions of the regulation implementing these same provisions, while the injunction remains in place. Consistent with the court’s order, HHS OCR will continue to enforce important protections against discrimination on the basis of race, color, national origin, age, or disability, as well as other sex discrimination provisions that are not impacted by the court’s order. 

Below are a few case examples that highlight OCR’s enforcement results in complaints alleging discrimination on the basis of sex.

  • Brooklyn Hospital Center in New York entered into a formal voluntary resolution agreement with OCR to ensure that transgender patients receive appropriate and equitable care and treatment. The agreement resolves a complaint filed by a transgender individual alleging discrimination on the basis of sex in the assignment of patient rooms.  The agreement requires the hospital to revise its admissions policy to include prohibitions of discrimination on the basis of sex.  For example during the intake process, patients are provided an opportunity to identity their preferred name and gender/transgender status. The hospital has committed to revising its room placement policy to ensure the safe, ethical, appropriate, and nondiscriminatory assignment of rooms for transgender patients.  Additionally, the hospital will implement policies and train staff to prevent and address derogatory statements and adverse treatment based on sex.  OCR will monitor the hospital for two years.

  • A transgender individual alleged that the Colorado Women’s Wellness Connection Program denied coverage of her mammogram because she transitioned from male-to-female rather than female-to-male. The Wellness Program provides funding to health care facilities to cover mammograms and gynecological screenings for low-income and under-insured women throughout Colorado.  The Wellness Program itself was funded primarily by the National Breast and Cervical Cancer Early Detection Program, administered by the Centers for Disease Control and Prevention (CDC). Under the Program, CDC’s position was to cover only individuals who were genetically female.  Subsequent to OCR’s investigation, CDC issued guidance for all its grantees, including the Wellness Program, to clarify that recipients of CDC’s grants can cover mammogram services for transgender women who have taken or are taking hormones.  OCR confirmed that the Wellness Program adopted the CDC’s new guidance and formally notified all of its sub-grantees of the policy change.

  • OCR received a complaint from a man who received transportation services for his doctors’ appointments from a private medical transportation provider in Georgia.  The complainant alleged that multiple drivers harassed him because of his feminine gender expression.  As a result of OCR’s investigation, staff, including drivers, received training on how to avoid sex stereotyping and usage of appropriate terminology.  Quality and safety measures were also implemented to prevent discriminatory treatment.

  • An individual alleged that he was denied the benefits of appropriate care and treatment at the Touro Infirmary Emergency Department in Louisiana after a domestic violence incident and that he was subjected to rude comments from hospital staff because he was a male victim of domestic violence. After OCR initiated an investigation, Touro revised its abuse protocol to provide gender-neutral procedures for reporting incidents involving domestic abuse. Touro also provided training to its emergency department staff on identifying and assessing victims of domestic abuse.

  • The St. Bernard Medical Center in Arkansas had a policy and practice that treated married individuals differently on the basis of sex.  For example, the Medical Center automatically assigned a male spouse as the guarantor (sole financially responsible party) when a female spouse received medical services.  However, when a male spouse received services, his female spouse would not automatically be assigned as the guarantor.  As a result of OCR’s investigation, the Medical Center changed its billing practices to ensure equal treatment regardless of the sex of the patient.

  • The Avera Marshall Regional Medical Center in Minnesota had a similar practice of treating married individuals differently on the basis of sex. If the patient was male, he was automatically listed as the guarantor for billing purposes. However, if the patient was female, the Center automatically assigned the patient’s husband as guarantor. The Center subsequently changed its billing process to list the patient as the guarantor of his or her bill and allow parents to choose the guarantor of their minor children. As a result of OCR’s investigation of a related HIPAA Privacy Rule complaint that the Center disclosed a woman’s personal health information to her husband despite her specific request to restrict disclosure of the information, the Center also implemented a new restrictions policy and provided training to staff on the policy.

  • A transgender individual alleged that Aetna discriminated against him by denying him coverage for gender reassignment surgery and making inappropriate comments. Initially, Aetna told the complainant that this surgery was not covered under the terms of the complainant’s health plan. However, during OCR’s investigation, Aetna recognized that its original denial had inappropriately been based on an exclusion for cosmetic procedures. Aetna stated that requests for gender reassignment surgery are considered based on medical necessity and are covered under the complainant’s plan in accordance with Aetna’s policies. As a result, Aetna informed OCR that it will cover the complainant’s gender reassignment surgery and is incorporating this surgery as a covered benefit in all of its group plans. In addition, Aetna is retraining its customer service representatives who respond to telephone calls to ensure that representatives respond to calls appropriately.

  • Boston Medical Center (BMC) has taken a number of corrective actions in response to two separate complaints involving transgender individuals. In the first complaint, a transgender individual alleged that BMC discriminated against her by delaying her medical treatment. The complainant alleged that she sought medical treatment at BMC, and during the in-take process, was inappropriately questioned multiple times in the public waiting room regarding the gender listed on her patient forms. Through its investigation, OCR determined that the complainant’s medical treatment was not delayed during the course of her interaction with BMC. However, OCR found evidence raising concerns about how the complainant was questioned by BMC staff regarding her gender identity. In the second complaint, another transgender individual alleged that BMC discriminated against her by not allowing her to change the gender marker in her medical records without documentation of a completed gender reassignment surgery, referring to her by the wrong name and gender pronoun, and delaying her medical treatment. OCR’s investigation concluded that there was not sufficient evidence to support the allegations that the complainant was treated disrespectfully or in a different manner based on sex. Additionally, BMC provided evidence that it informed the complainant of its policy on changing one’s gender marker, which requires a patient to provide a government issued ID and a physician letter indicating treatment for gender transition; it does not require documentation of completed gender reassignment surgery.

    Although OCR’s investigations of these two complaints did not result in a finding of discrimination, BMC has nonetheless taken voluntary corrective actions to ensure culturally competent care to its lesbian, gay, bisexual, and transgender (LGBT) patients. Specifically, BMC provided training to the nursing leadership team and perioperative staff on caring for transgender individuals. Also, BMC provided training to its senior leadership on culturally appropriate care as part of the Human Rights Campaign Healthcare Equality Index (HEI) process, which seeks to measure an institution’s efforts related to equality for LGBT individuals across the areas of patient non-discrimination, equal visitation, employment non-discrimination, and training in LGBT patient-centered care. BMC has also offered HEI training to its entire staff. In addition, BMC has convened a multi-disciplinary workgroup to determine how to best capture the information of a gender transition in the registration system and in the electronic health record for treatment purposes.

  • A female transgender individual alleged that Laboratory Corporation of America (LabCorp) discriminated against her by ignoring the documentation she provided about her name change and because a LabCorp staff member repeatedly addressed her as a male. LabCorp agreed to update the complainant’s name change and gender marker information in accordance with the complainant’s request. Also, as a result of OCR’s investigation, LabCorp retrained the staff member who interacted with the complainant as well as other staff on treating LGBT individuals. In addition, LabCorp published an article, in the company’s internal publication, on appropriate ways to interact and communicate with LGBT patients.

  • An individual alleged that North Natomas Medical Center (NNMC) discriminated against him when NNMC allegedly denied him a physical exam after he discussed the possibility of undergoing gender reassignment. The complainant further alleged that NNMC later terminated him as a patient in retaliation for his filing a complaint with the California Medical Board about NNMC denying him this physical exam. Through OCR’s investigation, it was determined that the complainant was not denied treatment on the basis of his gender identity, but was referred to medical specialists that NNMC believed would be better qualified to address the complainant’s healthcare needs. OCR also determined that the complainant was not terminated as a patient in response to his filing a complaint, but based on legitimate non-discriminatory reasons. Nonetheless, as a result of OCR’s investigation, NNMC took corrective action as a preventative measure by drafting a non-discrimination policy which requires non-discrimination on the basis of sex and partnering with a local non-profit that specializes in transgender healthcare issues for additional training on the provision of medical care to transgender individuals.

Content created by Office for Civil Rights (OCR)
Content last reviewed on May 16, 2016
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