Six years ago, the HHS Office for Civil Rights (OCR) entered into a settlement agreement with a New York hospital that allegedly discriminated against a transgender patient.[1] Although it did not pay a fine, a feature common to OCR’s HIPAA settlements, The Brooklyn Hospital Center (TBHC) committed to implementing a two-year corrective action plan (CAP) that contained a number of sweeping requirements, including revising its intake process and room-placement policies.[2]
It also was required under the 2015 settlement and CAP to revise its policies and procedures to pledge that “every patient has the right to privacy and confidentiality during medical treatment or other rendering of care within TBHC.”
The agreement appears to be OCR’s only settlement based on enforcement of nondiscrimination provisions that had been included in the Affordable Care Act (ACA) five years earlier. Now, a decade after the ACA was passed and on the heels of a recent United States Supreme Court ruling, OCR has put health care organizations on notice that it will again sanction those that violate the nondiscrimination provisions in Section 1557. This is, of course, in addition to continuing to enforce the privacy, security and breach notification regulations and other civil rights protections in health care.
On May 10, HHS Secretary Xavier Becerra announced that, beginning on that day, OCR would “interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity. Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in covered health programs or activities.”[3]
“OCR’s mission is to protect people from all forms of discrimination,” Acting OCR Director Robinsue Frohboese added in the announcement. “OCR will follow Supreme Court precedent and federal law, and ensure that the law’s protections extend to those individuals who are discriminated against based on sexual orientation and gender identity.”
Hospital Gave Patient Male Roommate
Nearly a year earlier, the Supreme Court had ruled in Bostock v. Clayton County, Georgia,[4] that “Title VII of the Civil Rights Act of 1964 (Title VII)’s prohibition on employment discrimination based on sex encompasses discrimination based on sexual orientation and gender identity” and that the “‘because of sex’ in Title VII necessarily included discrimination because of sexual orientation and gender identity,” the HHS announcement said.
“Since Bostock, two federal circuits have concluded that the plain language of Title IX of the Education Amendments of 1972’s (Title IX) prohibition on sex discrimination must be read similarly,” the agency stated on its web page dedicated to Section 1557.[5]
These decisions reversed lower court rulings that enjoined HHS from applying a definition of sex that included gender identity, which had formed the basis of its agreement with TBHC.
That case was prompted by allegations TBHC violated Section 1557 when it assigned “a transgender female who presented as a female at the hospital…to a double occupancy patient room with a male occupant.”
New Rule-Making Anticipated
The agreement states TBHC “shall not deny equal services, accommodations, or other opportunities to any individual because of the known relationship of the individual with a person based on the person’s sex, including gender identity, gender expression, and nonconformity with gender stereotypes.”
Now that OCR will move forward again with nondiscrimination enforcement, it also is likely facing the task of rewriting regulations issued by the Trump administration, which deleted gender identity from the definition of sex.
It’s not clear what OCR’s new enforcement efforts will look like, but the TBHC settlement could be a model. In any case, given the agency’s history with the TBHC settlement—which occurred before any rules were issued—OCR has the authority to pursue complaints even in the absence of a revised regulation.
Health care organizations should review their policies and procedures to ensure they prohibit discrimination on the basis of gender identity, not just gender. As demonstrated by the TBHC settlement, an action like the wrong room placement could trigger a complaint to OCR, which may be eager to demonstrate its commitment via new enforcement actions.
