Let’s Adapt Health Care Quality Measures To Meet The Needs Of Transgender People

Originally published by Health Affairs Blog on September 11, 2017. Written by Heather Pearson, 2017 Summer intern in the Health Law and Policy Clinic, and Landon Hughes.  


As transgender people become increasingly visible, so have the challenges they face in our health care system. In response, the Association of American Medical Colleges (AAMC) recommends better educating providers on how to competently care for transgender patients, and the Institute of Medicine (now the National Academy of Medicine) recommends collecting gender identity information in electronic medical records and conducting more research around transgender health.

Moreover, recent findings suggest that some health care quality measures inappropriately include or exclude transgender people and are not tailored to address the unique needs of this population. The US health care system must adapt current quality measures to transgender individuals to achieve the recommendations of the National Academy of Medicine and the AAMC.

Moreover, recent findings suggest that some health care quality measures inappropriately include or exclude transgender people and are not tailored to address the unique needs of this population. The US health care system must adapt current quality measures to transgender individuals to achieve the recommendations of the National Academy of Medicine and the AAMC.

Problematic Health Care Quality Measures

Some health care quality measures use sex designations to identify which patients should be measured (for instance, measures that assess the percentage of patients screened for breast, prostate, or cervical cancers). Using sex to identify populations for quality measurement improperly excludes or includes transgender patients, since a transgender person’s sex-identifier may not accurately represent their physiology. Furthermore, the measure specifications may not align with clinical guidelines for transgender people.

Sex-specific quality measures offer no assurances that transgender patients’ care adheres to practice guidelines for this population. Adapting health care quality measures to transgender populations will not only ensure that providers are being held accountable for the care they deliver to transgender patients but will educate providers about the health care needs of their transgender patients, incentivize the collection of gender identity information in electronic medical records, and spur additional research focused on transgender health.

Educating Providers Through Inclusive Quality Measures

Provider education on the health needs of transgender patients is a relatively recent addition to medical educational curricula. A 2011 study showed that US and Canadian physicians were trained a median of five hours in lesbian, gay, bisexual, and transgender (LGBT) health. In a new pilot study, the median number of hours recent medical students were trained in LGBT health jumped to 22, yet students reported particular discomfort with caring for transgender patients.

Nevertheless, studies have shown a positive correlation between educating medical students about transgender health and the students’ overall comfort with treating transgender patients. Measures adapted to transgender people offer an opportunity to educate providers about the health needs of their transgender patients. Particularly, if transgender-inclusive quality measures are specified in value-based delivery models, providers will be required to comply with transgender-specific practice guidelines, thereby affording them the opportunity to learn about the care standards of transgender patients and become more comfortable treating this population. Above all, this population-specific reporting framework would benefit providers who did not receive adequate, or any, training in transgender health.

Encouraging Data Collection On Gender Identity

Proper data collection for transgender patients, including a patient’s gender identity, is essential to accurate quality reporting. Without the correct data, providers cannot identify in their records which patients are transgender.

In 2015, the federal government required providers participating in the meaningful use program (which has been folded into the Merit-based Incentive Payment System, or MIPS) to collect data on patients’ gender identity in their electronic medical records. The adoption of transgender-inclusive measures, particularly in value-based delivery models, will further require all providers to identify transgender patients in their electronic medical records—not just those providers who participate in MIPS. By fostering inclusive data collection for transgender individuals, researchers will be better equipped to study the health needs and outcomes of this population. To conduct research with any degree of scientific validity, the routine collection of gender identity information is essential. The National LGBT Health Education Center has issued recommendations for how to properly collect gender identity data.

Spurring More Robust Research Around Transgender Health

Research and professional organizations rely on robust scientific evidence when developing quality measures. Some organizations have published practice guidelines for transgender patients; however, many of these recommendations rely on a limited number of studies. As researchers begin to include transgender patients in quality measures, they will be well-served by more research on transgender health. Additional studies will be necessary to continuously inform quality measures to assure transgender patients receive proper care. The demand for additional evidence will encourage researchers to focus on transgender health.

While randomized controlled trials are the gold standard for producing scientific evidence, feasibility and ethical considerations may limit the use of this methodology in transgender health research. Researchers have suggested that observational comparative studies could provide robust evidence for guidelines around transgender health. Such studies may require gathering patient data across many clinics, which highlights the importance of routine collection of gender identity data across different practice settings.

What’s Next?

recent study published in the American Journal of Public Health found that transgender patients had poorer general health compared to cisgender patients (that is, individuals whose gender identity matches the sex assigned to them at birth). However, as quality measures are ill-adapted to account for transgender patients, it is difficult to hold providers accountable for the quality of the care they deliver to this population. Furthermore, as the US health care system shifts toward value-based delivery models, such as accountable care organizations and other alternative payment models, public health professionals and payers increasingly rely on quality measures to ensure that the quality of care provided to patients is not affected by cost-containment actions.

Failure to properly consider transgender populations in quality measurement can lead to increased payments to providers that may not reflect the quality of care delivered to all patients—especially this vulnerable group. Holding providers accountable for the quality of care delivered to their transgender patients is necessary to appropriately reward high-quality care provided to all populations. However, to hold providers accountable for this population, the quality measures themselves must be changed.

Organizations that measure health care quality (such as the National Quality Forum, the Centers for Medicare and Medicaid Services, the National Committee for Quality Assurance, and the Agency for Healthcare Research and Quality) should use already existing guidelines—such as those published by Fenway Healththe World Professional Association for Transgender Health, and the University of California, San Francisco—to adapt quality measures that rely on sex-specific criteria. Inclusive quality measures, incorporated into value-based delivery models, offer a mechanism to achieve the recommendations outlined by the National Academy of Medicine and the AAMC. By holding providers financially responsible for the quality of care provided to transgender patients, we can educate providers about transgender health and encourage inclusive data collection. Finally, the establishment of uniform data collection allows for more robust data repositories that can be leveraged by researchers to adequately study the health care needs and outcomes of this population. Inclusive quality measures must be incorporated into the health care system to reflect the quality of care provided to all patients—not just cisgender ones.

Authors’ Note: The authors’ research was funded by RTI International.


FLPC Welcomes Visiting Scholar Paula Fernandez-Wulff

Paula Fernandez-Wulff is a Visiting Researcher in the Food Law and Policy Clinic (FLPC), invited by FLPC Director Emily Broad Leib and with the generous support of a Fulbright-Schuman fellowship. She is currently a Ph.D. Candidate at the Institute for Interdisciplinary Research in Legal Sciences at the University of Louvain (UCL), in Belgium, where she works under the supervision of Olivier De Schutter and Tom Dedeurwaerdere. Her doctoral research focuses on the role of municipalities in implementing the human right to food through local policies in Europe and beyond – with a particular eye to those policies aimed at supporting local initiatives and social movements at large. Her research interests also include the implementation of economic and social rights at the local level and critical perspectives on human rights more broadly. She has lectured on constitutional law, hunger and global governance, and sustainability science at UCL, SciencesPo, and Tokyo University, and is part of the Editorial Board of the bilingual European Journal of Human Rights.

Paula earned an M.Sc. in Environmental Governance from United Nations University (UNU-IAS, Tokyo), where her research, conducted while working at the Food and Agriculture Organization of the U.N., focused on agrobiodiversity protection policies and food governance frameworks in Latin America.

Prior to pursuing graduate studies, Paula began her legal career with one of the leading global law firms, later shifting to policy research with one of Spain’s leading economic policy think tanks. She graduated with a double degree in Spanish and French law at Universities Complutense and Paris 1 Panthéon-Sorbonne.


CA State Legislature Sets its Sight on Reducing Food Waste

Last week, the California state legislature passed two bills aimed at reducing food waste and increasing food recovery. The Harvard Law School Food Law and Policy Clinic (FLPC) has been working closely with advocates in California since the inception of both bills and we are thrilled to announce their passage. AB 954 seeks to reduce consumer confusion and food waste by encouraging the use of standard date labeling phrases on food products, while AB 1219 encourages the donation of wholesome surplus food by expanding liability protections for food donations. The bills must be approved by the governor by October 15 in order to become law.

Each year, about 40% of food in the U.S. is wasted. In California alone, 5.5 million tons of food ends up in landfills each year. A significant contributor to this food waste is the current date labeling system. With the exception of infant formula, there are no federal standards for date labeling. In the absence of federal law, states have enacted a broad range of date label laws, and manufacturers use a dizzying variety of date labeling language on food products. These dates are generally not intended to communicate safety information; instead, they signal a manufacturer's estimate of how long food will taste its best. Unfortunately, consumers often mistakenly believe that these dates are indicators of safety, and many report throwing food away once the date passes due to fear of safety risks. According to a national survey  we conducted along with the National Consumers League and Johns Hopkins Center for Livable Future, 84% of consumers at least occasionally throw food away when the date passes. When consumers misinterpret these indicators of quality as indicators of safety, more food is wasted, which is bad for consumers’ wallets, the food system, and the environment.

FLPC has been pushing for the standardization of date labels since the release of our 2013 report, The Dating Game: How Confusing Date Labels Lead to Food Waste in America (published in partnership with the Natural Resources Defense Council), and standardizing date labels has been found to be the single most cost-effective solution to reducing food waste in the U.S. In recent years, bills to standardize date labels have been introduced at the state and federal level. Additionally, in February of this year, the Food Manufacturing Institute and the Grocery Manufacturers of America launched a voluntary industry initiative encouraging manufacturers and retailers to use standard date labeling phrases on their products.

The passage of AB 954, introduced by Assemblymember David Chiu (D-San Francisco), will reduce food waste by encouraging the standardization of date labels in California. AB 954 requires the California Department of Food and Agriculture and Department of Public Health to publish information encouraging food manufacturers, processors, and retailers to use standard labeling terms on food products. The law promotes the use of the terms “BEST if Used by” or “BEST if Used or Frozen by” to indicate a quality date, and the use of the terms “USE by” or “USE or Freeze by” to indicate a safety date. The law also encourages manufacturers to develop alternatives to consumer-facing “sell-by” dates, which can increase confusion among consumers.


In addition to date labels, California has also begun to address the issue of liability protections for food donations. Donating safe, edible food to those in need can significantly reduce the amount of food being sent to landfills and support food security goals in the state. Yet, across the U.S., many businesses fail to donate foods because they do not know about available liability protections, are fearful because of unclear provisions, or are hesitant to incur additional costs needed to comply with relevant regulations. A 2016 survey conducted by the Food Waste Reduction Alliance found that 44% of manufacturers, 25% of retailers and wholesalers, and 39% of restaurants identified liability concerns as a top barrier to donating food. There is clearly a lot of work to be done to clarify the scope of existing liability coverage and expand these protections to better align with the current food recovery landscape.

Last week, the California state legislature passed the California Good Samaritan Food Donation Act (AB 1219), which was introduced by Assemblymember Eggman (D-Stockton). Before introduction of AB 1219, food facilities donating food fit for human consumption to a food bank or nonprofit charitable organization were not liable for any damage or injury resulting from consumption of the food, unless the injury was the result of negligence or a willful act when preparing or handling the donated food. AB 1219 expands those protections to gleaners and individuals who donate food, and narrows the liability to those cases in which the injury resulted from gross negligence or intentional misconduct. This language mirrors the Bill Emerson Good Samaritan Food Donation Act, which provides federal-level liability protections for food donors. Finally, AB 1219 explicitly protects donations of past-date foods, provided that if the food is perishable, the person distributing the food to the end recipient makes a good faith judgment that the food is wholesome. Overall, the bill significantly improves liability protections for food donors across the state, giving Californians the tools they need to address food waste and food insecurity at the same time.

We applaud advocates and legislators in California for their efforts to reduce the waste of healthy, wholesome food across the state. These bills represent important steps that will improve the environment and increase food security, while saving money for consumers, businesses, and government.



Young Farmers, Student Loans, and the 2018 Farm Bill

Written by Jennifer Benson, Summer 2017 intern in the Food Law and Policy Clinic.

It is not news that the number of farmers in the United States has been dwindling, with the consolidation of small family farms into highly industrialized mega businesses, as well as the exodus from rural America into the cities. It also may not surprise readers of this blog that the average age of the American farmer is currently 58 years old and increasing. The last USDA agriculture census indicated there are three times as many farmers over the age of 65 as farmers under the age of 35, while some more recent estimates put the ratio as high as 6 to 1.

As these farmers begin to retire, leaders in the agriculture sector have expressed concern about the future of food and farming in America. If there are no new farmers, who is going to grow our food?

Luckily, there is a new crop of young people who are interested in farming and are ready to take the reins. However, young farmers face barriers to entering the agricultural field that previous generations did not. Land is expensive, and is not widely available; equipment, infrastructure, and inputs also require investment up front; credit can be difficult to come by as a young person with no assets or income; and young farmers are often carrying the additional burden of tens of thousands of dollars in student loan debt.

A survey by the National Young Farmers Coalition (NYFC) found that, on average, their members carry $35,000 in student loan debt. The same survey found that the majority of respondents require off-farm income in order to make student loan payments, and almost 30% of respondents decided not to pursue farming as a career because of their student loan debt.

This issue has gained attention over the past year, thanks in large part to a campaign by NYFC that culminated in the Young Farmer Success Act, a bill that is currently in front of Congress.

If this bill were signed into law, it would add farmers to the Public Service Loan Forgiveness Program (PSLFP), a U.S. Department of Education program that forgives the balance of student loans for graduates who work in public service careers – currently doctors, nurses, attorneys, teachers, and government and non-profit employees. However, with the fate of that program on the chopping block, young farmers are looking elsewhere.

One place they should look is to their own state governments.

Some states, including New York and Pennsylvania, have already created programs to assist young farmers with their student loan payments, and several other states proposed bills during the last legislative session, though none ultimately passed. However, this movement does seem to be gaining momentum, and it is possible we will see more successful state student loan repayment bills in upcoming sessions.

But what about a nation-wide solution? While the PSLFP is probably not going to be expanded, if it survives this administration at all, another piece of federal legislation is ramping up that could provide a home for a beginning farmer student loan program.

Congress has begun crafting the omnibus legislation, known as the farm bill, that governs nearly all aspects of our agriculture system, with a goal of passing an updated version in 2018.

The USDA has expressed a commitment to encouraging young farmers to enter the profession, and the farm bill already contains programs supporting new farmers, including the Beginning Farmer and Rancher Development Program (BFRDP). But advocates will likely need to take a different approach than was taken with the Young Farmer Success Act in order to be successful in Congress.

One option, modeled after a similar program for public interest attorneys, would be a federally funded, state-administered grant program. A grant program solves a couple of problems with the Young Farmer Success Act: first, grants work with a set, predictable budget, and second, they give states the flexibility to create a program that works for them, within parameters set by the federal government.

Unlike the PSLFP, which pays off a student’s remaining debt no matter the amount and for as many program participants as are eligible and choose to participate, a grant program would work within a set budget, funding program participants until the money runs out.

A beginning farmer student loan repayment program would also fit well with the goals of the BFRDP already in place under the current farm bill. Though a grant program will not solve all young farmers financial issues, it could provide enough of an incentive for motivated young farmers to continue to pursue a career in agriculture.

With potential cuts to agricultural funding of $10 billion over the next 10 years, according to the recently released House Agriculture Committee budget resolution, the creation of new programs and asks of increased funding may be a hard sell. But without a solution to the aging farmer crisis, soon there may be no need for a farm bill at all.



FLPC Releases New Report Outlining Policy Recommendations to Reduce Food Waste in Pennsylvania

Today, the Harvard Law School Food Law and Policy Clinic released Moving Food Waste Forward: Policy Recommendations for Next Steps in Pennsylvania, a report providing information and recommendations on how Pennsylvania state and local governments can help reduce food waste. The report applies and refines FLPC's October 2016 toolkit, Keeping Food out of the Landfill: Policy Ideas for States and Localities, to provide information and recommendations specific to Pennsylvania. Moving Food Waste Forward was commissioned by Philabundance, a hunger relief organization serving 90,000 people in nine counties across Pennsylvania and New Jersey.

The report is comprised of ideas and recommendations that emerged from conversations with food waste experts, food recovery organizations, and other stakeholders from around the state, but the report also references information and examples from other states. The recommendations span the following seven policy areas: tax incentives, liability protections, date labels, food safety, school food waste, organic waste bans and waste recycling laws, and government support.

Pennsylvania stakeholders can use the information in this report to determine key policy priorities to reduce the amount of food wasted in the Commonwealth. Philabundance has already begun to do just that, working together with the Mayor or Philadelphia on the food waste reduction component of the City’s Zero Waste and Litter Action Plan. Two recommendations, in particular, have come to the forefront for Philabundance—a food waste recycling law and standardizing date labels—and FLPC is excited to continue working together with them to achieve these goals and reduce food waste!

Read Moving Food Waste Forward: Policy Recommendations for Next Steps in Pennsylvania.



EQIP: Subsidies for Big Ag in the Farm Bill’s Conservation Title

Written by Lexi Smith, Summer 2017 intern in the Food Law and Policy Clinic.

When we talk about the farm bill, often commodities, insurance, and nutrition programs take center stage. These programs are politically contentious and together they comprise over 93 percent of spending in the 2014 Farm Bill, so it makes sense that they are widely covered. However, the lack of attention to other titles can allow misuse to go unnoticed. The Environmental Quality Incentives Program (EQIP), a part of the farm bill’s conservation title, is a perfect example of how well-intentioned programs can be subverted by powerful agriculture companies in the absence of public pressure.

EQIP offers competitive grant funding to conservation-focused on-farm projects. The program offers assistance with a variety of different initiatives, including its Air Quality Initiative, On-Farm Energy Initiative, Organic Initiative, High Tunnel Initiative (dedicated to extending crop seasons through sustainable practices), Strikeforce Initiative (designed to encourage investment in areas with rural poverty), Landscape Initiative (intended to prevent erosion), Conservation Innovation Grants, and Colorado River Basin Salinity Project (which focuses on reducing salt flow into the Colorado River Basin). It also has a large general fund for projects that do not fall under these initiative-based umbrellas.

When EQIP began in the 1996 Farm Bill, it targeted “historically underserved producers,” defined as “limited resource farmers/ranchers, beginning farmers/ranchers, socially disadvantaged producers, Indian Tribes, and veteran farmers/ranchers.” In order to be eligible, producers had to belong to one of these groups or fall beneath a certain income cap. This ensured that the expense of conservation efforts did not push small farms out of the industry. Furthermore, concentrated animal feeding operations (CAFOs) were explicitly ineligible for aid. Farmers also had to be in compliance with a very low set of baseline standards regarding wetland preservation and erosion in order to eligible, creating an incentive to make improvements on their own before applying for funding.

In spite of its origins, today EQIP increasingly supports large-scale, industrial farms rather than their smaller, more disadvantaged counterparts. This happened for a variety of reasons. First, the practice of contracting, particularly among poultry and livestock producers, means that large distributors, packers, and dealers use smaller growers to raise their animals. These smaller farms often fall below EQIP’s eligibility ceiling of $900,000 in annual adjusted gross income and thus qualify for aid. The funding from EQIP therefore functions as a subsidy for the larger corporations, which could afford to pay higher prices from their suppliers and thus support better sustainability measures.

Second, EQIP eligibility requirements have changed significantly. In 2002, the Farm Bill raised the maximum EQIP payment per project from $50,000 to $300,000. CAFOs became eligible to receive aid for the first time, and guidelines focused on projects with the largest pollution impact rather than the most cost-effective plans for conservation. The legislation also set aside 60 percent of EQIP funding specifically for livestock operations. In 2008, the cap for each project was lowered to $300,000, but the Secretary of the USDA was given the authority to waive the $300,000 cap in favor of a $450,000 ceiling in cases of “special environmental significance.” The USDA was also given the authority to waive the adjusted gross income cap on a case-by-case basis for the first time and no limitations were set as to how often they could do so.

Finally, state level allocations of funding are often even more lenient than federal guidelines. In 2008, for instance, Iowa’s NRCS office made “[s]urface and subsurface water quality related to the presence of excessive nutrients and organics related to livestock production by concentrated animal feeding operation’s (CAFO’s) [sic] on open feedlots” an explicit criterion for eligibility. Georgia increased the eligibility of particular counties with high concentrations of CAFOs. North Carolina launched a program under EQIP in 2008 that only allotted money to farmers with concentrated swine operations.

These policies have resulted in massive changes in scope and distribution of funding. EQIP spending increased almost 8-fold between 2001 and 2008 following changes in the 2002 Farm Bill. At present, 20 percent of EQIP funding recipients account for 70 percent of its spending and the top one percent alone accounts for 15 percent of spending. Even though swine CAFOs make up just 10.7 percent of hog farms in the US, they obtain approximately 37 percent of EQIP contracts given to pig farms. Industrial dairies comprise 3.9 percent of US dairy farms, but they get an estimated 54 percent of dairy-related EQIP contracts. Clearly, the program has strayed from its egalitarian beginnings.

The 2018 Farm Bill offers an opportunity to restore EQIP to its original, noble design. Lawmakers could phase out funds for CAFOs under EQIP, lower the per project funding cap back to its original levels, change federal guidelines to refocus on cost-effective and innovative proposals, and/or take away USDA authority to waive the income cap on eligibility. None of these proposals would require any additional funding; in fact, ideas like contractor grant-matching would complement federal spending with private support. Shifting grant evaluation guidelines to reward creativity and efficacy rather than largess and environmental damage would also ensure that taxpayer money is spent on worthwhile projects. Thus, for the good of taxpayers, small and socially disadvantaged farmers, and the environment, Congress should use the next farm bill to bring EQIP back to its effective, equitable, and sustainable roots.