Compliance Considerations when Treating Gender Identity and Gender Diverse Patients

Written by Gabriella Neff, RHIA, CHA, CHC, CHRC, CHPC 

It is all about respect. Transgender individuals are protected under HIPAA, the Affordable Care Act (ACA) and standards outlined for hospital accreditation under Medicare and Medicaid as well as Joint Commission. Hospitals may not have specific requirements for training staff on LGBTQ+ cultural competency and non-discrimination policies to be compliant to applicable rules and regulations. AIHC recommends referencing the National Library of Medicine’s Gender Inclusive Care Toolkit for Hospitals in addition to reading this article and references.  This article is an introduction to this complex topic and not intended as consulting or legal advice.

What Should Compliance Officers Know

Gender identity reflects one’s personal and internal sense of self as male or female or other. Gender-diverse refers to persons whose self-identity differs from the male or female assignment at birth. Below is a list of the most common gender identity terms used to identify individuals who do not identify with their gender assignment at birth (male/female).   

• Trans:  Describes a person who does not identify with their assignment of male/female at birth and may include a range of identities such as trans-woman and trans-man.
• Nonbinary: Describes a person whose gender identity does not traditionally fit into the gender of male or female.
• Agender: Describes someone who identifies as having no gender.
• Bigender: Describes a person whose identity combines two genders or who may sometimes be male and sometimes female.
• Cisgender: Describes a person whose gender identity matches the sex assigned to them at birth.
• GenderQueer: An umbrella term for those who think of their gender identity or sexual orientation as being outside of the social norms.

For clinicians to treat our gender-diverse population appropriately, we must consider the following: 

1. Create an inclusive environment. Use environmental signage to create an environment where all individuals can recognize that staff know and care about them equally as patients. Acknowledge and respect individuals who may self-identify outside of the norms of male or female by training staff on how to collect information on gender identity and sex assigned at birth sensitively and confidentially. Utilize the same self-identification terms and preferred pronouns and names. Consider creating gender-neutral bathrooms and care rooms, or at least designate one option and have it clearly marked as gender-neutral.
2. Ensure we are compliant with the regulations affecting gender-diverse patients. These include the regulations that prohibit discrimination and employment based on sex or gender identity, the general regulations addressing the ethical treatment of all patients, regardless of gender identity, and the protection of their information. [i]
3. Educate staff and create awareness. Engage and educate the Board and Senior Management to “set the tone” to provide resources for change and build inclusiveness as part of a commitment to equitable patient care. Educate all staff on diversity and inclusiveness.
4. Create policies and procedures to address equitable and sensitive processes in admitting/registration, treatment, the collection of gender identity data, compliance with regulations, and insurance issues.
5. Ensure clinicians have the tools needed to address multiple and complicated conditions that sometimes coincide with treating gender-diverse patients, such as gender-affirming hormone therapy and its effects on current treatment, medication dosing issues, understanding and interpreting lab references outside of the male/female binary, and utilizing a team-based approach to improve upon patient-centered care.
6. Ensure a process is in place to address billing and claims denials by ensuring that the name and gender provided to the insurer match the name and gender on the claims submitted and that staff utilize the special billing codes created by CMS to prevent inappropriately denied claims.
7. We should create an inclusive environment within our clinical trials by including gender-diverse subjects. The protocol should be diverse to address deviations, medication administration, cohorts, and adverse event reporting related to gender-diverse subjects.
8. And finally, be an advocate by practicing culturally and linguistically inclusive activities.

Understanding a person’s gender identity and sex assigned at birth enables clinicians to provide better and more appropriate care, along with meeting the health needs of gender-diverse patients respectfully.

About the Author

Gabriella Neff, RHIA, CHA, CHC, CHRC, CHPC is a Research Compliance Officer for H. Lee Moffit Cancer Center and also serves as a Board Member for the American Institute of Healthcare Compliance.

Copyright © 2024 American Institute of Healthcare Compliance All Rights Reserved

[i] Equality Act – prohibits discrimination based on an individual’s sexual orientation or gender identity in employment, housing, credit, education, jury service, federally funded programs (including health care), and businesses that serve the public.
Title VII of the Civil Rights Act of 1964 – protects employees from discrimination based on race, color, religion, sex, sexual orientation, or gender identity.
Executive Order 13672 – extended protection against discrimination in employment in the federal workforce on the basis of gender identity or gender expression.
Affordable Care Act – Sec. 1557 – prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in any health program or activity receiving Federal Funds.
Joint Commission Standard R1.01.01.01, EP 29 – prohibits discrimination on the basis of gender identity to maintain accreditation.
AMA Opinion 9.123 –derogatory language or actions on the part of physicians that cause psychological harm to patients is unethical – Principles of Medical Ethics.
HIPAA –Gender Identity is considered PHI – the minimum necessary standard.