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Access to Healthcare: Non-discrimination

LGBT Americans have long been denied access to health care and services. HHS has made significant progress in protecting the rights of every American to access quality care, while recognizing that diverse populations have distinctive needs.

Transgender Populations

The HHS Departmental Appeals Board (DAB) overturned a longstanding Medicare National Coverage Determination (NCD) that had provided that “transsexual surgery” would not be covered under Medicare because it was “experimental” and had a high rate of serious complications. The DAB ruled that the NCD was no longer valid because it was based on outdated scientific information. Within 30 days of the ruling, CMS implemented the decision by notifying its contractors that the NCD is no longer a basis for denying claims for Medicare coverage of gender transition-related care. Medicare coverage decisions with respect to gender transition-related care are now made by the Medicare contractors, either on a case-by-case basis or through Local Coverage Determinations based on clinical evidence, like other health care items and services for which there is no national policy under Medicare.

Additionally, the Centers for Disease Control and Prevention (CDC) clarified that its National Breast and Cervical Cancer Early Detection Program is available to eligible transgender women and men. All transgender women who have taken hormones may receive breast cancer screening under the program, subject to other eligibility standards. Transgender men who have not had a bilateral mastectomy or hysterectomy continue to be eligible for breast and cervical cancer screening.

People Living with HIV

CMS issued an interim final rule requiring individual market qualified health plans on and off the Health Insurance Marketplaces to accept third party payments on behalf of plan enrollees by the Ryan White program (as well as other government programs).

Hospital Visitation Rights

HHS released a new policy that implements the recommendations of the Memorandum on Hospital Visitation. This policy states that hospitals receiving Medicare or Medicaid payments should allow patients to designate visitors, regardless of sexual orientation, gender identity, or any other non-clinical factor. The HHS policy has enhanced hospital visitation rights of same-sex couples. For more information visit https://obamawhitehouse.archives.gov/the-press-office/presidential-memorandum-hospital-visitation

Advance Directives

CMS has issued guidance that implements the recommendations of the Memorandum on Hospital Visitation regarding advance directives.  The CMS guidance clarifies that same-sex couples have the same rights as other couples to name a representative who can make medical decisions on a patient’s behalf. The HHS rules make it easier for family members, including same-sex partners, to make informed care decisions for loved ones who have become incapacitated.

Equal Employment Opportunity Policy 

HHS has updated its equal employment opportunity policy, which already prohibited discrimination based on sexual orientation, to explicitly protect against unfair treatment of employees and applicants for employment based on gender identity and genetic information.

Health and Human Services’ Non-discrimination Policy 

HHS has issued a policy explicitly requiring employees to serve all individuals who are eligible for the department's programs without regard to any non-merit factor, including race, national origin, color, religion, sex, sexual orientation, gender identity, disability (physical or mental), age, status as a parent, or genetic information.

Implementation of the Windsor Ruling

Following the Supreme Court decision finding section 3 of the Defense of Marriage Act (DOMA) unconstitutional, HHS worked with the Department of Justice to review all relevant federal programs to ensure that the decision was implemented swiftly and smoothly. HHS announced its first post-Windsor guidance clarifying that Medicare Advantage beneficiaries with a same-sex spouse have equal access to coverage for care in a skilled nursing facility in which a spouse is located. This guarantee of coverage applies to Medicare Advantage beneficiaries in a legally recognized same-sex marriage, regardless of where they live.

Other examples of HHS’s post-Windsor implementation efforts include the following:

  • The Centers for Medicare and Medicaid Services (CMS) issued guidance clarifying that health insurance companies that offer spousal coverage also offer spousal coverage to same-sex spouses.
  • Following the Windsor decision, the Internal Revenue Service (IRS) issued a ruling for federal tax purposes that recognizes same-sex marriages of couples married in a jurisdiction whose laws authorize such marriages, even if a couple resides in a jurisdiction that does not recognize same-sex marriages. Within a month of the IRS ruling, CMS issued guidance to advise Health Insurance Marketplaces of the impact of the ruling with respect to eligibility for advance payments of the premium tax credit and cost-sharing reductions. These advance payments of the premium tax credit and cost-sharing reductions help individuals and families lower the costs of their monthly premiums and out-of-pocket costs for health insurance coverage purchased through a Marketplace. The guidance ensures that same-sex spouses will be treated in the same manner as opposite-sex spouses for these purposes.
  • Since section 3 of DOMA no longer controls the definition of marriage or spouse under the federal framework for state Medicaid and Children’s Health Insurance Programs (CHIP), DOMA is no longer a bar to states recognizing same-sex marriages in Medicaid and CHIP. CMS issued a guidance regarding marriage recognition for populations whose eligibility is determined on the basis of modified adjusted gross income (MAGI).  CMS also issued further guidance on the application of the marriage recognition policy for older adults and people with disabilities, whose eligibility for Medicaid is not determined on the basis of MAGI methodologies.
  • The National Institute of Health (NIH) issued guidance making clear that it’s Clinical Center and intramural clinical research programs will treat same-sex spouses and opposite-sex spouses equally.
  • The Administration for Community Living (ACL) provided guidance to all grantees funded under the Older Americans Act and the Developmental Disabilities Act regarding federal recognition of same-sex marriages. This guidance will be incorporated into the terms and conditions of affected Notices of Award moving forward.
  • The Health Resources and Services Administration (HRSA) updated income levels used to identify a “low income family” for the purpose of determining eligibility for programs that provide health professions and nursing training for individuals from disadvantaged backgrounds. The guidance clarifies that in determining eligibility for these programs, same sex spouses and opposite sex spouses will be treated equally.

In addition, HRSA updated its application guidance for loan repayment for both the National Health Service Corps and the NURSE Corps to reflect that any reference to “spouse,” “couple,” or “marriage,” as well as “family” or “family member,” now includes same-sex spouses legally married in jurisdictions that recognize their marriages.

  • SAMHSA published a statement to notify relevant grantees and SAMHSA programs of its policy recognizing legal same-sex marriages.
Content created by Assistant Secretary for Health (ASH)
Content last reviewed on August 15, 2017