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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.
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 The DAB ruled that the NCD was no longer valid because it was based on outdated scientific information.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.
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).
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
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.
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.
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.
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:
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.
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