If a healthcare organization follows any policy that prevents them from providing specific medically necessary treatments, such as hormone blockers, hormone therapies, hysterectomy, or mastectomy, to some patients based on a diagnosis of gender dysphoria, but allows them to provide the same treatment to other patients based on other diagnoses, this may result in discriminatory treatment that is in conflict with their non-discrimination policy. This includes:
Healthcare facilities following state laws or regulations that ban gender-affirming care for certain populations;
Veteran’s Affairs Medical Centers that cannot provide gender-affirming surgeries due to the exclusion in the VA medical benefits package; and
Healthcare facilities that follow specific religious healthcare directives that may prohibit certain types of gender-affirming care.
While these healthcare facilities may potentially discriminate in their treatment of transgender patients because of the external policy that they are following, there are ways to mitigate the risk of discriminatory treatment of LGBTQ+ patients. This option outlines the steps a healthcare facility must take in order to only receive a 5-point deduction in their HEI score.
Organizations that follow these types of policies may only be subject to a five-point deduction (to offset the points received for the Patient Non-Discrimination Policy) if they take the following transparency actions to mitigate the potential for discriminatory situations to occur. In order to only receive this 5-point deduction in the HEI, the organization must take affirmative action to clearly communicate the existence of the policy or directive and what services they do not provide to help prevent potential discriminatory situations.
Provide a transparent and easy-to-find statement on their website (or the health system website) about what gender-affirming care procedures and services they do not provide and why. If the organization has an LGBTQ+ services page, this statement must be on that page or very clearly linked to from that page; AND
Have in place a clear referral mechanism to hospitals in the same geographic area that do provide these procedures and clearly communicate this referral process on the same webpage as above*; AND
Clearly communicate this limitation in their services to all area surgeons that would perform any of the procedures in question that have privileges at their hospital(s) and ensure that the surgeons know at what hospitals they should seek to provide these services.*
After taking these communication steps an organization would only be assessed a 5-point deduction. If after this deduction, the organization has a final score of between 80-95 and meets the other criteria for earning the Top Performer designation (full credit in criteria 1 and at least partial credit in criteria sections 2, 3, & 4), the organization may earn the Top Performer designation.
Organizations that choose not to take these mitigating steps would be subject to the full 25-point deduction. Organizations that take these steps and later have a discriminatory incident may be subject to the full 25-point deduction.
Organizations in states with a gender-affirming care ban where a court injunction allows continued access to care are expected to continue providing access to gender-affirming care. Failure to continue providing access to this care may result in the full 25-point deduction being applied.
Exception: Healthcare facilities in states that have passed gender-affirming care bans that can demonstrate that they actively and publicly opposed these bans and took actions to advocate against these bans will not be subject to the five-point deduction. However, they must still provide a transparent and easy-to-find statement on their website (or the health system website) about what procedures and services they do not provide and why.
*Healthcare facilities in states that have passed gender-affirming care bans do not have to take these additional steps, however, they must have a statement on their website about the limitations on gender-affirming care due to the state law. HRC will provide template language and guidance on the statement.
In the HEI 2022, 137 HEI 2022 participants received this deduction. The majority (115) of these participants are facilities operated by the Veteran’s Health Administration, which due to an exclusion in the VA medical benefits package are unable to provide gender-affirming surgeries. The other group of 22 hospitals that received this penalty are Catholic healthcare facilities that interpret one or more of the Catholic Ethical and Religious Directives in a way that means they will not perform certain gender-affirming surgeries while they would provide the same surgeries for other patients based on other diagnoses.