HHS Revises Policy to Include Explicit Provision for Protections of LGBTQ Patients

Last week, the Department of Health and Human Services (HHS) published regulations revising the Conditions of Participation for Hospitals and Critical Access Hospitals to include explicit provision for protections of LGBTQ patients.   Conditions of Participation (CoPs) set requirements and expectations for hospitals participating in Medicare and Medicaid.  These standards significantly enhance the quality of care and protect the health and safety of patients.

Last week's rule includes a new standard within the CoPs explicitly prohibiting discrimination against patients on the basis of sex (including gender identity) and sexual orientation.  These explicit protections will provide meaningful safeguards for patients, and will play a key role in ending the health disparities that continue to plague so many in the LGBTQ community.  In addition to prohibiting discrimination, the proposed regulation also requires hospitals to establish and implement a written nondiscrimination policy and to inform each patient of their rights under this provision and the process for filing a complaint.

Last week's regulation is not only consistent with the nondiscrimination requirements imposed by the regulation implementing Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of gender identity and sex stereotyping, but also provides additional explicit protections for lesbian, gay, and bisexual patients. Last week's regulation also reflects established and widely accepted existing federal standards of care.  For example, the Joint Commission incorporated inclusive non-discrimination requirements into its standards for all hospitals seeking accreditation in 2011.  HRC has consistently urged HHS to adopt these protections within the CoPs.  In October 2014 HRC directly called on HHS to adopt these and included this recommendation within the two most recent editions of the Healthcare Equality Index (HEI).

These recommendations were made because HRC has independently researched hospital policies and in the HEI 2016 found that only 58 percent have patient non-discrimination policies that include both sexual orientation and gender identity. The HEI’s findings demonstrate the patchwork of protections nationwide for LGBTQ patients and their families, as well as LGBTQ healthcare facility employees, underscoring the need for uniform federal non-discrimination protections. LGBTQ Americans are facing a harsh choice between healthcare facilities that have policies that guarantee them equal care, and those that have consistently failed to take steps to ensure all patients receive inclusive, compassionate and respectful care.

Fear of discrimination causes many LGBTQ people to avoid seeking healthcare, and, when they do enter care, studies indicate that LGBTQ people are not consistently treated with the respect that all patients deserve.  In a recent study, 56 percent of LGB people and 70 percent of transgender and gender non-conforming people reported experiencing discrimination by healthcare providers--including refusal of care, harsh language, and physical roughness--because of their sexual orientation or gender identity. A startling 27 percent of transgender respondents and 8 percent of LGB respondents reported that they had been denied necessary healthcare because of their gender identity or sexual orientation. Delay and avoidance of care due to fear of discrimination compounds the significant health disparities experienced by LGBTQ people as a group. For example, 28 percent of transgender people reported that they postponed or avoided seeking treatment when sick or injured for fear of facing discrimination.

HRC applauds HHS for making this much needed step towards ending LGBTQ health disparities and ensuring that all patients regardless of their sexual orientation or gender identity receive the care they need and deserve.

To read the proposed regulation visit: https://www.gpo.gov/fdsys/pkg/FR-2016-06-16/pdf/2016-13925.pdf

HRC staff

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