A recent decision by the U.S. District Court for the District of Minnesota, which concerned a transgender individual’s discrimination claims against a hospital and its physicians under the Affordable Care Act (ACA) and Minnesota Human Rights Law, highlights potential liability for hospitals and other providers. The court’s application of applicable federal and state healthcare nondiscrimination laws in this case is important for healthcare entities to understand and consider, particularly in light of ongoing legal developments in this area. These developments include litigation as well as agency enforcement activities and a newly issued proposed rule that expressly interprets sex discrimination protections under the ACA to include protections against discrimination on the basis of gender identity.
Nondiscrimination Under the ACA
The ACA, signed into law by President Obama in March 2010, contains a nondiscrimination provision, Section 1557, 2Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §1557, codified as 42 U.S.C. §18116 (2010). which provides that:
- [A]n individual shall not, on the ground prohibited under title VI of the Civil Rights Act, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, or section 504 of the Rehabilitation Act of 1973, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided and available under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for purposes of violations of this subsection. 3Id. (internal citations omitted).
Despite being enacted more than five years ago, Section 1557 has remained largely unexamined in the context of formal regulations or litigation—until very recently. And, as illustrated by the Minnesota district court’s March 2015 decision in Rumble v. Fairview Health Services, 4Rumble v. Fairview Health Servs., No. 14-cv-2037, 2015 BL 70114, 2015 WL 1197415 (D. Minn. 3/16/15). both courts and the Department of Health & Human Services’ Office for Civil Rights (HHS OCR), the federal agency responsible for enforcing Section 1557, continue to grapple with this nondiscrimination provision. Against this backdrop of developing case law and pending agency enforcement and rulemaking activities, Rumble represents a notable development and step forward with respect to the implementation and enforcement of this important provision.
Rumble’s Complaint
The Plaintiff in Rumble, Jakob Tiarnan Rumble, was 18 years old at the time of the alleged discrimination. He identifies as a female-to-male transgender man. Rumble filed a lawsuit against defendant Fairview Health Services d/b/a Fairview Southdale Hospital and defendant Emergency Physicians, alleging that he was discriminated against in violation of Section 1557 of the ACA and the Minnesota Human Rights Act 5Minnesota Human Rights Act (MHRA), Minn. Stat. §363A.11 (West 2015). from June 23 to June 28, 2013, when he was under the care of defendants. 6Rumble, 2015 WL 1197415 at *2.
According to Rumble, the discriminatory treatment began as soon as he arrived at the emergency room at Fairview Southdale Hospital on June 23, 2013, to seek treatment for extreme pain in his reproductive organs. 7Id. at *2–*3. Rumble alleged that emergency room personnel provided him with a wristband labeled with an “F” (despite his having identified as male when he arrived); that the hospital clerks whispered about his gender; that he waited an unusually long amount of time to be seen; and that he received an unnecessarily hostile and painful examination which only ended after Rumble’s mother yelled for the doctor to stop, despite his own requests to stop. 8Id. at *3 –*5.
Once admitted to the hospital, Rumble alleged that the discriminatory treatment continued. Rumble alleged that it was listed outside of his door that he was being treated by an OB/GYN, which effectively identified him as having female reproductive organs to hospital staff and visitors; that after an exam of Rumble’s genital area, the doctor did not change his gloves before examining his eyes and mouth; and that only after Rumble’s mother suggested that he may have a sexually transmitted infection did the doctors prescribe him a different medication which improved his condition. 9Id. at *5 –*7.
Court’s Analysis
The court applied Section 1557 to Defendants Fairview and Emergency Physicians, refusing to dismiss Rumble’s complaint, and essentially finding that Section 1557 provides a new civil right to individuals like Rumble (and others in protected classes). 10Id. at *11 (“It appears that Congress intended to create a new, health-specific, anti-discrimination cause of action that is subject to a singular standard, regardless of a plaintiff’s protected class status.”). In its analysis, the court determined that incorporation of the four pre-existing civil rights statutes into the language of ACA Section 1557 establishes the “grounds on which discrimination is prohibited—i.e., race, sex, age, and disability”—in a healthcare setting. 11Id. at *12 (internal quotations omitted). The court concluded that the Rumble case concerned prohibited discrimination addressed in Title IX: sex discrimination. 12Id. at *7.
In its analysis, the court noted guidance from HHS OCR, stating that Section 1557 “extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and prohibits discrimination regardless of the actual or perceived sexual orientation or gender identity of individuals involved.” 13Id. at *10 (internal quotations omitted). In determining how to apply the Title IX standard, the court found that, “at this stage of the proceedings, it need not determine the precise standard to apply to Plaintiff’s Section 1557 claim.” 14Id. at 12. The court did state, however, that it was likely that Congress intended for there to be a single standard and burden of proof for a Section 1557 plaintiff, regardless of the plaintiff’s protected class status. 15Id. Not all courts, however, have agreed with this. See, e.g., Se. Pennsylvania Transp. Auth. v. Gilead Sci., Inc., No. 2:14-cv-6978, 2015 BL 130626, 2015 WL 1963588, at *6 n.3 (E.D. Pa. 5/4/15) (stating that, if Congress had intended for the same standard to apply regardless of the plaintiff’s protected class status, “Congress could have listed the six protected classes without reference to those statutes and expressly provided for a single enforcement mechanism instead of incorporating mechanisms from all four statutes”).
In refusing to dismiss Rumble’s complaint, the court took notice of the totality of the circumstances, stating that, with all of the examples of potential discrimination alleged by Rumble, he had demonstrated “that he was denied the benefits of a health program or activity, or discriminated against” 16Rumble, 2015 WL 1197415 at *16. —which Section 1557 prohibits. Further, the court found that the Section 1557 claim against Fairview was plausible. 17See id. at *27 (“[I]t is plausible that Fairview staff treated Plaintiff in the manner that they did because of his protected class status.”).
Federal Guidance on Section 1557
To date, very few courts have addressed nondiscrimination in healthcare under Section 1557 of the ACA and, although the statute permits HHS to issue regulations implementing this provision, the agency had not done so as of this writing. Importantly, however, HHS OCR recently issued a proposed rule for the regulatory notice and comment process specific to implementation of Section 1557 of the ACA. The proposed rule, published in the Federal Register on Sept. 8, 2015, is open for public comment until November 9 of this year. 18HHS OCR, Notice of Proposed Rulemaking, Nondiscrimination in Health Programs and Activities, 80 Fed. Reg. 54,172 (Sept. 8. 2015). Consistent with the prior guidance from HHS OCR cited in the Rumble court’s analysis, the proposed rule expressly states that “OCR has previously interpreted sex discrimination to include discrimination on the basis of gender identity”; it further notes that “[o]ther Federal agencies have similarly interpreted the meaning of sex discrimination,” and that “courts, including in the context of Section 1557, have recognized that sex discrimination includes discrimination based on gender identity.” 1980 Fed. Reg. at 54,176. A footnote in the proposed rule includes a cite to Rumble, among other cases. 20Id. at 54,176 n.21. The footnote acknowledges that at least one court has not taken this view. See id. The proposed rule also includes provisions relating to HHS OCR’s enforcement of Section 1557, which build on existing mechanisms for enforcing civil rights laws and HHS OCR’s experience to date in its enforcement of Section 1557.
In addition, OCR has undertaken certain regulatory implementation activities outside of the formal rulemaking process. For example, OCR has facilitated several voluntary resolution agreements (VRAs) in connection with individual complaints it has received. In one such agreement, the Williamston House, an assisted living facility, allegedly denied admission to complainant because of his HIV status. 21See Voluntary Resolution Agreement Between the HHS OCR and Williamston House, available at http://www.hhs.gov/ocr/civilrights/activities/agreements/williamston.html (last visited July 24, 2015). While much of the agreement involves Section 504 of the Rehabilitation Act, the Williamston House was required under its VRA with OCR to reaffirm adherence to its Non-Discrimination Policy, which states that “[t]his statement is in accordance with the provisions of … Section 1557 of the Patient Protection and Affordable Care Act of 2010.” 22Id.
In another example of a situation that has resulted in a VRA, the OCR received a discrimination complaint against the Colorado Department of Public Health and Environment, Women’s Wellness Collection. 23See OCR Closure Letter: Colorado Department of Public Health and Environment, Women’s Wellness Collection, available at http://www.hhs.gov/ocr/civilrights/activities/examples/sex/162066.html (last visited July 24, 2015). The complainant alleged that the Women’s Wellness Collection had discriminated against her by denying funding for her mammogram because she was a male to female transsexual woman. 24Id. In its Discussion and Analysis section, the Closure Letter states that “Section 1557 specifically prohibits an FFA [Federal financial assistance] recipient from discriminating against patients on the basis of sex in health programs and activities. This prohibition includes denying services to a patient on the basis of sex.” 25Id. The Closure Letter notes that Women’s Wellness Collection has changed its policy, and now covers mammograms for transgender women. 26Id.
As noted, OCR also has issued sub-regulatory guidance regarding implementation of Section 1557. In a December 2013 Bulletin on corrective actions taken in sex discrimination cases for purposes of enforcement of Section 1557, OCR discussed two cases in which the agency effectuated changes in discriminatory policies on the basis of Section 1557. 27See Bulletin, HHS Office for Civil Rights, Corrective Actions Taken in Sex Discrimination cases Enforcement of “Section 1557” of the ACA (Dec. 6, 2013), available at http://www.hhs.gov/ocr/office/1557_bulletin.pdf. The first case involved a male who alleged that he had received discriminatory treatment at the Touro Infirmary emergency department in New Orleans, Louisiana. 28Id. The complainant alleged that, after a domestic violence incident, “he was subjected to rude comments from hospital staff because he was a male victim of domestic violence.” 29Id. On account of OCR’s investigation, Touro revised its policies to include gender-neutral procedures for reporting domestic violence, and provided training to its staff in assessing domestic violence victims. 30Id. The second case involved St. Bernard Medical Center in Jonesboro, Arkansas. There, the complainant alleged discrimination on the basis of sex by automatically assigning a male spouse, but not a female spouse, as the sole financially responsible party. “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.” 31Id.
As another, more recent example, this summer a Bulletin was released stating that HHS OCR and The Brooklyn Hospital Center (TBHC) had “entered into a voluntary resolution agreement to ensure that transgender TBHC patients receive appropriate and equitable care and treatment.” 32See Bulletin, The Brooklyn Hospital Center Implements Non-Discriminatory Practices to Ensure Equal Care for Transgender Patients, U.S. Department of Health and Human Services Office for Civil Rights (July 14, 2015), available at http://www.hhs.gov/ocr/civilrights/activities/agreements/TBHC/statement.pdf. TBHC agreed to revise several of its existing procedures and to implement new procedures in order to “ensure that transgender patients are treated equitably and fairly and receive the full benefit of its services.” 33Id. These and other examples of OCR investigation and enforcement activities to date 34Other examples include actions taken in the context of other protected classes under Section 1557, such as individuals with disabilities. See, e.g., Letter to Hospital Administrators from Jaime Pia-Cortes, Executive President of Puerto Rico Hospital Association, and Jocelyn Samuels, Director of HHS OCR (June 9, 2015), available at http://www.hhs.gov/ocr/civilrights/resources/specialtopics/hospitalcommunication/colleague_lettle.pdf (asking hospital administrators to “take steps to ensure that [their facilities] provide all individuals with disabilities, including individuals who are deaf or hard of hearing with full and equal access and effective communication to healthcare services provided by [their facilities]” and stating that federal laws, including Section 1557, require health care providers to provide non-discriminatory services to people with disabilities, including providing appropriate auxiliary aids and services to deaf and hard of hearing patients and their families when it is necessary for effective communication). demonstrate that, although courts are only just beginning to evaluate Section 1557 claims, and although formal rulemaking on this important provision remains pending (with the public comment period currently open), healthcare providers and hospitals are already experiencing enforcement activity as a result of the ACA’s nondiscrimination requirements.
Rumble’s State Law Claim
In addition to risk under federal law, medical providers may also run afoul of state laws for discriminatory treatment of transgender individuals. Rumble’s second claim, for instance, was that Defendants discriminated against him in violation of the Minnesota Human Rights Act (MHRA), which states that it is an unfair discriminatory practice “to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of race, color, creed, religion, disability, national origin, marital status, sexual orientation, or sex … .” 35Minn. Stat. §363A.11. The court refused to dismiss this claim, as well, finding that, assuming his allegations are true, Rumble “was denied the full and equal enjoyment of humane and dignified care that other patients would have received.” 36Rumble, 2015 WL 1197415 at *19 (internal quotations omitted). The court further found that Rumble’s complaint plausibly demonstrated that Dr. Steinman, Rumble’s emergency room physician, discriminated against him because of Rumble’s transgender status. 37Id. at *20.
As such, the court’s analysis in Rumble demonstrates that hospitals and physicians can be held liable for discriminatory treatment of transgender individuals under federal law as well as applicable state human rights statutes. Because a number of states have human rights laws similar to Minnesota’s, 38See, e.g., 775 Ill. Comp. Stat. Ann. 5/5-101 (2015); Mo. Ann. Stat. §213 (West 2015); N.Y. Exec. Law §290 (McKinney 2015). and because ACA Section 1557, of course, applies to all jurisdictions, hospitals and physicians should take the necessary steps to provide the appropriate care to transgender individuals (as well as other individuals in protected classes), consistent with applicable federal and state law.
Practical Implications for Healthcare Providers
Although significant questions linger regarding the scope of Section 1557 (and related state civil rights statutes), Rumble and the HHS OCR regulatory actions to date demonstrate that the provision can be enforced and that hospitals and healthcare providers should review their policies, procedures, and training materials and practices to help ensure that all personnel and physicians adhere to appropriate policies.
One publication that hospitals and healthcare providers can consider consulting as a resource when conducting this review is Creating Equal Access to Quality Health Care for Transgender Patients: Transgender-Affirming Hospital Policies, 39Creating Equal Access to Quality Health Care for Transgender Patients: Transgender-Affirming Hospital Policies (2013), Human Rights Campaign Foundation, Lambda Legal, and the LGBT Rights Committee of the New York City Bar Association, available at
http://www.hrc.org/resources/entry/transgender-affirming-hospital-policies. which provides suggestions for hospitals on best practices for care of transgender patients.
This publication includes a set of model policies aimed at eliminating bias and insensitivity to help ensure appropriate and welcoming interactions with transgender patients. These policies address a wide range of issues that when mishandled become barriers to health care for transgender patients as well as potential sources of litigation. Policy recommendations include:
- Inclusion of gender identity and gender expression protections in patient non-discrimination policies and the patient bill of rights;
- Capturing gender identity and preferred name and pronouns in paper and electronic admitting and registration records;
- Development of protocols for interaction with transgender patients to ensure that clinicians and staff members interact with transgender patients with professionalism, courtesy, and respect;
- Policies for the safe, ethical, and appropriate assignment of rooms based upon a transgender patient’s self-identified gender;
- Policies to ensure that transgender patients have safe and equal access to restrooms in accordance with their gender identity; and
- Ensuring that a transgender patients’ rights to privacy are specifically addressed in written privacy policies and procedures.
Healthcare facilities should also ensure that their staff has been trained on how to implement these policies and procedures, and clinical staff should seek out training on providing culturally competent care to transgender patients. In addition, a growing number of free, online trainings on this topic are available, such as programs offered by the Human Rights Campaign Foundation to participants in the Healthcare Equality Index, as well as programs offered by the Fenway Institute’s National LGBT Health Education Center.
Conclusion
Hospitals and healthcare providers that examine their policies and practices to ensure that discrimination is prohibited, that recommendations for equitable and inclusive care are in place and followed, and that staff are trained to provide knowledgeable, sensitive care can create an environment that welcomes transgender patients rather than one that increases liability risks under applicable federal and state discrimination laws.
