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Gender Identity and  Section 1557: Practical Steps for Addressing Discrimination on the Basis of Sex

Gender Identity and Section 1557: Practical Steps for Addressing Discrimination on the Basis of Sex

Health Care Law Note
(October 6, 2016)

The impetus behind the Patient Protection and Affordable Care Act's ("ACA's") Section 1557, titled "Nondiscrimination," was to assist populations that historically experienced barriers to health care in a system geared toward the majority. Individuals in underserved populations include those with disabilities and limited English proficiency and members of the LGBT community. Standard training and long-established procedures likely prepare providers and health plans to accommodate the majority of their patients and members, but the final rule implementing Section 1557 establishes that focusing on the majority is not enough. Consistent with the goal of the ACA as a whole, the final rule requires covered entities to expand access to health care by alleviating intentional and unintentional discrimination within the health care system.

Among other things, Section 1557 prohibits discrimination on the basis of sex. As defined in the final rule, discrimination on the basis of sex includes discrimination based on an individual's sex; pregnancy, childbirth, and related medical conditions; gender identity; and sex stereotyping. Gender identity is defined in recognition of the idea that gender identity is non-binary. Specifically, gender identity is defined as "an individual's internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual's sex assigned at birth." Sexual orientation is not specifically included in the definition, although it would be included to the extent the discrimination on the grounds of sexual orientation is based on sex stereotyping. 

The new rule requires covered entities to "treat individuals consistent with their gender identity." Failure to acknowledge and respect an individual's gender identity may rise to the level of unlawful discrimination if such failure is sufficiently serious to interfere with or limit an individual's ability to participate in or benefit from health care services. "For example, a provider's persistent and intentional refusal to use a transgender individual's preferred name and pronoun and insistence on using those corresponding to the individual's sex assigned at birth constitutes illegal sex discrimination if such conduct is sufficiently serious to create a hostile environment."  A hostile environment may arise as a result of staff members' actions—or because of rigid, long-standing processes and procedures that are not designed to accommodate changes to gender identity.

Obvious measures to address discrimination on the basis of sex include staff education and training to ensure that LGBT patients and plan members have equal access to health care and coverage. However, human bias is only one component of the discrimination many members of the LGBT community—especially transgender individuals—experience. Systemic bias plays a major role in hindering or discouraging these individuals from receiving health care and coverage. The following list provides some practical steps that covered entities should consider to resolve the deeply-entrenched policies and procedures that can lead to human and systemic discrimination on the basis of sex.

1. Revise forms to request gender identity. A major impediment to eliminating barriers is the stubborn habit of asking patients and members to categorize themselves as either male or female. It is difficult, if not impossible, for a covered entity to ensure that it is treating an individual consistent with his or her gender identity when the entity does not know, at an organization level, what that individual's gender identity is. Thus, covered entities should consider revising their standard intake and enrollment forms to request individuals to provide their gender identity. 

In doing so, the entity should resist an outmoded binary view of gender. In other words, revised forms probably should not add two additional boxes asking whether an individual identifies as male or female. Rather, to be consistent with the nondiscrimination rule, the form should include a blank asking for gender identity. This gives individuals the opportunity to express their gender identity without unnecessarily dividing them into two categories. Similarly, forms should afford individuals the opportunity to provide their legal and preferred name. Forms could even allow individuals to indicate preferred pronouns to ensure that staff can treat the individual in accordance with his or her gender identity.

Additionally, the form should allow the individual to decline to provide a gender identity. A covered entity is probably justified in treating an individual based on sex if the individual does not request different treatment by providing a gender identity. In contrast, if patients and plan members never have the opportunity to provide a gender identity, the covered entity will have a harder time justifying an assumption that an individual wished to be treated consistent with his or her sex assigned at birth, rather than his or her gender identity.

2.  Develop and disseminate information about processes for designating or changing gender identity. In addition to seeking relevant information from new patients or enrollees, covered entities should develop a process for established patients and plan members to designate a gender identity. A covered entity may be found to have discriminated against the patient on the basis of sex if it requests transgender individuals to submit multiple appeals to correct gender coding issues to obtain coverage for services. Covered entities should give transgender individuals the opportunity to address the issue of gender identity proactively to avoid these types of issues. Because this is an emerging area of the law, covered entities should consider disseminating information as to how transgender individuals can officially change their gender identity on plan and health forms and in the medical record.

3.  Train coding staff and claims analysts in modifiers to avoid erroneous claims denials. Billing and coding systems designed prior to the new rule usually flag codes that were previously seen as inconsistent with data on the individual receiving treatment. For example, the computer system may automatically deny codes related to a hysterectomy for a patient identified as male. When the entity requests information on gender identity, its coding staff can use available modifiers to ensure that claims are paid correctly. Although computer flagging is not necessarily discriminatory, it could lead to prohibited discrimination if it results in delayed treatment, denial of services, or repeated efforts to resolve the discrepancy.

4.  Revise procedures to ensure that staff and communications use preferred names. Privacy policies frequently require use of a patient's first name and last initial. However, to the extent this policy encourages use of a patient's legal name, rather than a preferred name that reflects an individual's gender identity, the policy could result in discriminatory conduct. Policies should be revised to facilitate appropriate use of a patient's preferred name.

5.  Revise room placement policies and procedures. Similarly, room placement policies may result in discrimination if the policies prevent staff from treating an individual consistent with his or her gender identity. For example, a room placement policy that requires staff to pair patients in rooms with others based on the patients' sex assigned at birth, rather than gender identity, could be discriminatory. Any room placement or similar policies that divide patients based on sex assigned at birth should be reviewed and revised, if necessary, to promote compliance with the rule of the ACA's nondiscrimination provision. 

6.  Revise staff training materials. The Department of Health and Human Services Office for Civil Rights ("OCR") has developed a training presentation for compliance with Section 1557, which is posted on OCR's website. Current staff should undergo training to understand their obligation and their employers' obligation to comply with Section 1557. Additionally, training manuals should be revised to incorporate notices regarding nondiscrimination and any policies the covered entity has developed to ensure compliance with the new rule.

7.  Ensure that the electronic health record permits data correction and linking of accounts. If a patient provides a preferred name and gender to the health care provider, it is the responsibility of the provider to ensure that records and communications reflect the preferred name and gender identity. In the case of an established patient, this may involve the electronic linking of "Jane Doe's" medical record with those of "John Doe." Providers should review their electronic health record systems and, if necessary, work with the vendor on a solution that permits the system to recognize "Jane Doe" and "John Doe" as the same patient and allows the provider treating "John Doe" to access the appropriate medical and treatment history.

8.  Review the registration process to ensure that data is collected in a sensitive and professional manner. In addition to revising forms and training staff, evaluate the logistics of the registration process. Is there a private space where registration staff can follow up with the patient on any questions regarding gender identity and preferred name? What is the process you will follow if your location requires the patient to show ID but the name and gender on the identification do not match the patient's preferred name and gender identity? Do your registration, treatment, and billing systems "talk" to each other, such that any preferred name and gender identity recorded by the registration staff flow through to the treatment record and the bill? A positive registration process can help set the tone and avert potential system or human errors throughout the patient's treatment with a provider.

9.  Ensure your disciplinary policies reflect actions taken in the event of discrimination. Internal enforcement and disciplinary measures show that a covered entity is committed to compliance, and that its policies are not just paper policies. Misconduct by staff can expose covered entities to agency action and private civil litigation. The entity may be able to limit its exposure if it can show that disciplinary measures are taken when employees fail to follow policies against discrimination. The entity's policies should define discrimination to include refusal to use a transgender individual's preferred name and pronoun and should establish corrective action measures to be taken in response. Such disciplinary measures should be imposed consistently and documented in staff members' personnel files.

10.  Apply grievance policies to gender identity issues. Staff must be made aware that a patient has the right to file a grievance regarding failure to acknowledge the patient's expressed gender identity and name, and that such grievances must be addressed through the established grievance process.

Health care providers and health plans that accept federal financial assistance must comply with the final rule implementing Section 1557. Covered entities that fail to comply with the nondiscrimination rule risk private civil litigation or administrative action by OCR. There are concrete steps health care providers and insurers can take to minimize the risk of a discrimination complaint and to increase individuals' access to, and satisfaction with, their services. Educating your workforce and subjecting existing processes and forms across the institution to thoughtful scrutiny are key to achieving compliance with Section 1557's requirements concerning gender identity.

Click here for more information regarding the final rule and its applicability and enforcement.

Dorothy H. Cornwell
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