A growing number of states are enacting laws that could deprive LGBTQ people of medically appropriate gender-affirming care. These laws could require health care providers to release protected health information (PHI) in violation of HIPAA rules.
The Office for Civil Rights (OCR) within the Department of Health & Human Services (HHS) on March 2, 2022, issued new guidance on gender-affirming care, civil rights, and patient privacy. Providers who may be concerned about their obligations to disclose information concerning gender-affirming care should seek additional legal guidance regarding their legal responsibilities and other laws, according to OCR.
Eric Meininger, MD, MPH, an associate professor of clinical pediatrics and the co-director of the Gender Health Program at Indiana University School of Medicine in Indianapolis, said the new guidance can help clinicians because it clearly states where OCR stands on some of the new laws being enacted. “I do believe this is important. Having worked with the OCR in the past on an unrelated disability case related to a patient of mine, even the potential of an audit from them is frightening to many administrators as they have the ability to impact federal funding,” Dr Meininger said.
The OCR could step in if there is a specific case or set of cases in which patients are unable to receive care because an institution or individual provider was restricted by state laws. This likely will reassure institutions’ legal counsel to stand up to threats from state authorities.
Widespread misinformation about medical care recommended for transgender and gender-diverse adolescents is fueling efforts to limit access to care. Arkansas passed a bill to bar such care in March 2021, and 19 states have proposed legislation to limit access to care this year, according to the Freedom for All Americans campaign.
The Endocrine Society said it is alarmed at the criminalization of transgender medicine. It is condemning the directive by Texas Governor Greg Abbott ordering the Department of Family and Protective Services (DFPS) to investigate any reported instances of Texas children receiving gender-affirming care as “child abuse.” The policy rejects evidence-based transgender medical care and will restrict access to care for teenagers experiencing gender incongruence or dysphoria, according to the society. Health care providers should not be punished for providing evidence-based care that is supported by major international medical groups.
The society asserts that medical evidence, not politics, should inform treatment decisions. It is calling on policymakers to rescind these types of directives and allow physicians to provide evidence-based care. The American Association of Clinical Endocrinology strongly opposed legislation that limits access of patients with endocrine problems to established medical therapies. The association believes decisions impacting health care are best left to the health professional, the patient, and the patient’s family, just like all medical care.
Joshua Safer, MD, executive director of the Mount Sinai Center for Transgender Medicine and Surgery in New York, New York, said misinformation campaigns are a major concern. “Withholding health care can be catastrophic. It is important to protect people from being denied care due to discrimination,” Dr Safer said.
It is uncertain how clinicians may be able to follow some of the newly proposed laws without violating HIPAA rules, he added.
HHS says it stands with transgender and gender-nonconforming youth and their families, as well as many medical associations, in unequivocally stating that gender-affirming care for minors, when medically appropriate and necessary, improves their physical and mental health. “Attempts to restrict, challenge, or falsely characterize this potentially lifesaving care as abuse is dangerous,” HHS said. Such attempts to block parents from making critical health care decisions for their children creates a chilling effect on health care providers.
HHS said it understands that many families and providers are facing fear and concerns about attempts to portray gender-affirming care as abuse. To help these families and providers navigate those concerns, HHS is providing additional information on federal civil rights protections and federal health privacy laws that apply to gender-affirming care.
Parents or caregivers who believe their child has been denied health care, including gender-affirming care, on the basis of that child’s gender identity, may file a complaint with OCR, as can health care providers who believe that they are or have been unlawfully restricted from providing health care to a patient on the basis of that patient’s gender identity.
HHS notice and guidance on gender affirming care, civil rights, and patient rivacy. Accessed at https://www.hhs.gov/sites/default/files/hhs-ocr-notice-and-guidance-gender-affirming-care.pdf
Endocrine Society alarmed at criminalization of transgender medicine. February 23, 2022. Accessed at https://www.endocrine.org/news-and-advocacy/news-room/2022/endocrine-society-alarmed-at-criminalization-of-transgender-medicine
Legislative Tracker: Youth Healthcare Bans. Accessed at https://freedomforallamericans.org/legislative-tracker/medical-care-bans/