The HHS office of Civil Rights and The Brooklyn Hospital Center have announced a landmark voluntary settlement agreement that establishes a "new standard for appropriate policies and procedures to ensure privacy and appropriate care of transgender patients.
OCR’s agreement with The Brooklyn Hospital Center (TBHC) was prompted by allegations that it violated an antidiscrimination provision in the Affordable Care Act (ACA) when it assigned “a transgender female who presented as a female at the hospital…to a double occupancy patient room with a male occupant.”
Under the terms of a two-year settlement, TBHC agreed to adopt, and train employees, on new policies and procedures tailored to transgender patients that address everything from admitting and rooming to documenting patients’ “legal and a preferred name” and their “gender and/or transgender status, if the Patient has identified that status and agrees that it should be recorded.” Employees also are to become familiar with terms such as “gender non-conformity” and “sex assigned at birth.”
Although OCR said it “made no formal finding,” this marks the first time OCR has investigated and outlined actions to be taken following a complaint of a violation of Section 1557 in the ACA, which “prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in any health program or activity, any part of which is receiving Federal financial assistance.”
The agreement is a great step forward and can be a model for other hospitals going forward who want to do the right thing before HHS comes knocking on their door.
--Demoya Gordon, Lambda Legal
As part of the settlement, the center agreed to update its transgender nondiscrimination policy and provide appropriate training to staff.
Health care industry experts see the settlement as a wake-up call and warn that the next settlement might come with monetary penalties.
TBHC must document the patient’s preferences, the settlement states. But HIPAA consultant Chris Apgar says he doesn’t believe most electronic health record (EHR) systems have data fields that can accommodate such information.
To my knowledge, EHRs aren’t that sophisticated. Most can record sex, but the additional details regarding gender status, etc. would likely be noted in the chart notes. That means anyone with access to the chart notes would see the details.
Some EHRs have the ability to restrict access to certain portions of the record or set up ‘break the glass’ that notifies the treating provider that a patient’s record has been accessed by another provider with access to the EHR. That wouldn’t necessarily stop someone from looking.
There need to be some improvements in EHRs to permit easier segregation of sensitive data.
Gordon and others, including Kristen Eckstrand, M.D., Ph.D., founding chair of a transgender advisory committee for the Association of American Medical Colleges, say the settlement signals a new day for transgender patients, who studies show face significant hurdles in obtaining health care.