Date: June 29, 2020
To: All Medical Assistance Program Providers
Re: Protections Against Discrimination Based on Sexual Orientation, including Gender-Related Identity Under the Illinois Human Rights Act
On June 12, 2020, the Office for Civil Rights (OCR) of the Department of Health and Human Services (HHS) issued a revised Final Rule (“Final Rule”) implementing Section 1557 of the Affordable Care Act, eliminating protections from discrimination on the basis of gender identity and sex stereotyping. The purpose of this Notice is to clarify that despite the federal Final Rule, medical assistance providers in Illinois are required to provide supplies and services without discriminating on the basis of sexual orientation or gender-related identity pursuant to the Illinois Human Rights Act, 775 ILCS 5, and 89 Ill. Adm. Code 140.12. Specifically, the Illinois Human Rights Act prohibits unlawful discrimination on the basis of sexual orientation, which includes actual or perceived sexual orientation or gender-related identity, “whether or not traditionally associated with the person’s designated sex at birth.” 775 ILCS 5/1-103(O-1) and (Q).
In addition to State law, the HealthChoice Illinois contract between the State of Illinois and Medicaid managed care plans provides additional prohibitions on discrimination, including (1) Section 9.1.22, which requires compliance with federal or state laws, regulations, and orders that prohibit discrimination based on sex, sexual orientation, and gender-identity, and (2) Section 126.96.36.199, which requires Medicaid managed care plans to “take affirmative action to ensure that no unlawful discrimination is committed in any manner, including the delivery of services under this Contract.”
Furthermore, pursuant to 89 Ill. Adm. Code Sections 140.412, 140.413, and 140.440, as of January 1, 2020, the Illinois Department of Healthcare and Family Services (HFS) is reimbursing for gender-affirming surgeries and services subject to the establishment of medical necessity and prior authorization. See HFS Provider Notice 1/9/2020.The federal Final Rule does not impact Illinois Medicaid’s coverage of gender-affirming surgeries and services. For further information about HFS’s coverage of gender affirming surgeries and services under the Medical Assistance Program, see this FAQ.
· “Guidance Related to Non-Discrimination in Healthcare Services in Illinois” issued June 26, 2020 by IDHR, the Illinois Department of Insurance (DOI), HFS and the Governor’s Office. View this document here.
· “Company Bulletin 2020-16 Health Insurance Coverage for Transgender, Nonbinary, and Gender Nonconforming Individuals, and for Individuals of All Sexual Orientations” issued June 15, 2020 by DOI. View this document here.
Questions regarding this notice may be directed to the Bureau of Program and Policy Coordination at
Interim Medicaid Administrator