Category Archives: Issues

FOIA to HHS – Complaints for Denial of Coverage for Transition-Related Care

While the Department of Health and Human Services (HHS) finalizes its proposed rule prohibiting discrimination on the basis of gender identity in covered health programs, the question remains: what has HHS been doing since March 2010 to enforce the statute which prohibited such discrimination, 42 U.S.C. § 18116? To that end, I have FOIAed the following documents from HHS:

Any and all documents since March 23, 2010 establishing a complaint against a health insurance carrier for discrimination on the basis of gender identity, specifically by denying coverage for transition-related care such as mental health treatment, hormone replacement therapy, or gender affirming surgeries such as genital reconstructive surgery.
Any and all documents since March 23, 2010 closing a complaint against a health insurance carrier for discrimination on the basis of gender identity, specifically by denying coverage for transition-related care such as mental health treatment, hormone replacement therapy, or gender affirming surgeries such as genital reconstructive surgery.
Any and all documents establishing current guidance, rules, or similar content used by the Department of Health and Human Services to determine how to resolve complaints against a health insurance carrier for discrimination on the basis of gender identity, specifically by denying coverage for transition-related care such as mental health treatment, hormone replacement therapy, or gender affirming surgeries such as genital reconstructive surgery.

The focus on transition-related care is purposeful; while we know that HHS has been taking some action to address other forms of discrimination against transgender people, I am unaware of any action by HHS, outside of its pending rule, to address this endemic form of discrimination by health insurance companies. Complaints have been made (including one complaint I filed in response to particularly overt discrimination by CareFirst, filed in November 2014), but they don’t seem to ever get resolved.

The FOIA response should reveal how many complaints there are on this issue, how many have been closed (and what disposition), and how HHS formally considers them.

OIRA Meeting with TSA on Scanners

Today I met with the Office of Information and Regulatory Affairs, a small but important office within the Executive Office of the President, to discuss an upcoming TSA regulation concerning the policies used for the advanced body-imaging scanners. The problem with the scanners is that they are cissexist, starting from their pink and blue button user interface through to their assumptions that everyone’s anatomy is cis.

I emphasized that TSA’s agents are terrible, and ran through some examples of TSA mistreatment I’ve collected informally over the past few weeks. I recited back to them their training statistics, and how poor they actually are (the last numbers I saw, fewer than 10% of TSA agents have received training on gender identity). They cannot train their way out of the problems their scanners create: the best solution is to reprogram the scanners so that they no longer create more problems for transgender travelers.

I closed the meeting with a warning: if this issue is not adequately addressed in the final rule, I will be filing a Petition for Reconsideration on this issue. That seemed to get their attention.

Comment on Proposed National Coverage Determination – Gender Dysphoria and Gender Reassignment Surgery

The Centers for Medicare and Medicaid Services announced on December 3, 2015 that the agency was, at the behest of an outside petitioner, considering a new National Coverage Determination (NCD) for gender dysphoria and gender reassignment surgery. This NCD would replace the previous NCD from 1989, which categorically excluded coverage for “transsexual surgery” because it was “experimental” and “controversial,” based in part on Janice Raymond’s attack on transgender women, Transsexual Empire. This prior NCD was found to be invalid by the Department of Health and Human Service’s Departmental Appeals Board in May 2014.

This left a vacuum; transition-related care was no longer categorically excluded, but could be excluded by local coverage determinations. A new NCD would fill this void and hopefully ensure that regardless of where they live, Medicare and Medicaid beneficiaries will have access to any and all medically necessary transition-related care. To that end, I filed a comment clearly showing the weight of scientific support for transition-related care and reminding CMS that applicable statutes require such a NCD be issued. The scientific research list was developed from http://www.cakeworld.info/transsexualism/what-helps/hormones and http://www.cakeworld.info/transsexualism/what-helps/srs, which includes the abstracts from each of the papers.

On December 3, 2015, CMS initiated a review to determine whether health outcomes are improved from treatment for gender dysphoria and “gender reassignment surgery.” The overwhelming weight of scientific evidence indicate that treatments for gender dysphoria, up to and including gender affirming surgeries, improve health outcomes for transgender patients. More fundamentally, CMS does not have a choice in whether or not to cover treatments for gender dysphoria; prior coverage exclusions were based upon unlawful discrimination on the basis of sex, which the Affordable Care Act has reiterated is illegal.

The scientific evidence is easy to find, with studies routinely concluding that interventions such as hormone replacement therapy and gender affirming surgeries have benefits to transgender patients.

See, e.g.:

Frankly, in light of the weight of scientific evidence, failing to issue a national coverage determination for treatments of gender dysphoria would be an arbitrary and capricious abuse of agency discretion.

Failing to issue a national coverage determination would also violate 42 U.S.C. § 18116 (§1557 of the Affordable Care Act). The section covers CMS activities as an Executive Branch agency, and prohibits discrimination on the basis of sex in health programs or activities such as a national coverage determination. This prohibition has correctly been construed as including discrimination on the basis of gender identity. Rumble v. Fairview Health Services, 2015 WL 1197415 (D. Minn. Mar. 16, 2015), available at https://www.gpo.gov/fdsys/pkg/USCOURTS-mnd-0_14-cv-02037/pdf/USCOURTS-mnd-0_14-cv-02037-0.pdf.

CMS’s previous denial of coverage for gender dysphoria was based upon animus towards transgender people and bigoted views towards treatment options for gender dysphoria, deciding against coverage in part because treatment for transgender people was “controversial.” The 1981 memorandum justifying the prior national coverage determination, now rescinded as invalid by the Departmental Appeals Board, relied heavily upon the book Transsexual Empire: The Making of the She-Male by Janice Raymond. The book is well known as an anti-transgender screed (for instance, Ms. Raymond describes the mere existence of transgender women as a rape of cisgender women’s bodies).

CMS has an obligation to correct its past bigotry. Failing to remedy CMS’s history of discrimination towards transgender people with a new national coverage determination would continue unlawful discrimination against transgender people on the basis of their gender identity. Accordingly, CMS must issue a new national coverage determination, including coverage for all medically necessary transition-related care.

TSA AIT Scanners – Meeting Request to OIRA

This afternoon I submitted a meeting request to the Office of Information and Regulatory Affairs in the Executive Office of the President to discuss TSA’s unconstitutional program of singling out transgender travelers for extra scrutiny and abuse based on cissexist assumptions about anatomy. PDF available.

The Honorable Howard Shelanski
Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
Washington, D.C. 20503

Re: RIN 1652-AA67 – Passenger Screening Using Advanced Imaging Technology

Dear Administrator Shelanski:

As a transgender woman who occasionally flies for work and personal affairs, I have grave concerns with the draft final rule submitted to the Office of Information and Regulatory Affairs from the Transportation Security Administration on November 19, 2015. Put succinctly, the Advanced Imaging Technology (AIT) scanners unconstitutionally place undue scrutiny on transgender travelers because of cissexist assumptions about anatomy. Rather than being an occasional flaw in the system, the harassment of transgender travelers by TSA is designed into the system from the bottom up.

As you may be aware, the scanner is designed with a simple interface. An example, provided by the Department of Homeland Security,[1] appears below.

The scanner requires that a TSA employee press a pink or blue button, corresponding to the perceived gender expression of the traveler to be scanned. The traveler has no opportunity to ensure that they have been “read” correctly in a manner consistent with their gender identity and anatomy; they must hope that the TSA agent correctly discerns these things. This process is arbitrary, mistake-prone, and places an unconstitutional burden on transgender travelers to dress in a manner most likely to elicit a correct button press by government agents.

Once the button has been pressed, the AIT scanner is calibrated for certain anatomical assumptions. These assumptions are cissexist and fail to account for the existence of transgender bodies. If the agent presses the blue button, the AIT scanner assumes that the traveler will have a penis and no breasts. If the agent presses the pink button, the AIT scanner assumes the traveler will not have a penis but will have breasts. These assumptions are based in the cissexist logic that all men have penises and no women do, and similarly that no men have breasts and all women do. This logic is factually incorrect and places an unconstitutional burden on transgender travelers to explain their anatomy to uncaring government agents.

To solve this problem, TSA has proposed changing the word used for when the scanner detects something it was not programmed for from “anomaly” to “alarm.”

Meanwhile, TSA has also implemented a new policy for AIT scanner use. Under prior policy, any person had the ability to opt-out of the AIT scanner and be scanned physically. Many transgender travelers did so, rightly anticipating problems if they were to use the AIT scanner; while Ms. Shadi Petosky’s experience may be the most well-publicized,[2] she is far from alone in experiencing hellacious treatment by government agents for simply attempting to travel while transgender. Under the new policy announced on December 18, 2015, “TSA may direct mandatory AIT screening for some passengers.”[3] Now, not only is AIT screening the default, but it is mandatory for “some” passengers, with no indication of how this new authority will be used. Given TSA’s history of harassing transgender travelers, we are justified in being concerned.

If TSA wishes to maintain its AIT screening program, it must update the screening software and hardware so that is no longer based on government agents guessing the gender of travelers and so that it no longer assumes that all bodies are cisgender. Furthermore, while the AIT scanners continue to impose these unconstitutional burdens on transgender travelers, all travelers must have an unquestioned right to opt-out of the AIT scanner in favor of a physical screening.

I look forward to discussing this issue with your staff.

Sincerely,

Emily T. Prince, Esq.

[1] Department of Homeland Security, “Privacy Impact Assessment Update for TSA Advanced Imaging Technology,” DHS/TSA/PIA-032(d), Dec. 18, 2015, http://www.dhs.gov/sites/default/files/publications/privacy-tsa-pia-32-d-ait.pdf.

[2] See http://www.advocate.com/transgender/2015/9/22/one-trans-womans-tsa-horror-story, http://www.salon.com/2015/09/22/shadi_petosky_was_detained_by_tsa_for_traveling_while_trans_the_police_at_the_tsa_gate_were_awful_one_was_laughing_at_me/, http://www.nbcnews.com/news/us-news/transgender-woman-says-she-was-delayed-tsa-anatomical-anomaly-n431326, http://www.newsweek.com/shadi-petosky-transgender-woman-alleges-unfair-screening-tsa-orlando-airport-375220, http://www.nytimes.com/2015/09/23/us/shadi-petosky-tsa-transgender.html?_r=0.

[3] “Privacy Impact Assessment Update for TSA Advanced Imaging Technology”, supra note 1.

TSA Creates New Mandatory Screening Process “For Some Passengers”

On December 18, 2015, TSA issued a Privacy Impact Assessment relating to a change in TSA policy regarding the Advanced Imaging Technology (AIT) scanners, which have TSA agents identify passengers as male or female (“blue” or “pink”) and then flag any “anomalies” on their bodies, including body parts. These scanners are programmed to discriminate against transgender passengers, as they do not account for transgender anatomy. Some passengers have chosen to bypass the AIT scanner in favor of a physical screening, but under the new policy, “TSA may direct mandatory AIT screening for some passengers.”

Concerned about the impact of this policy on transgender passengers, I wrote TSA.

Dear Ms. Vaughan,

On December 18, 2015, your office issued the above-referenced Privacy Impact Assessment (PIA) Update for TSA Advanced Imaging Technology (AIT) (DHS/TSA/PIA-032(d)). That document revealed “a change to the operating protocol regarding the ability of individuals to opt-out of AIT screening in favor of physical screening.” Pursuant to this change, “TSA may direct mandatory AIT screening for some passengers.”

This is a sweeping change, and the PIA fails to explain its potential impact. I am particularly concerned with how TSA’s new authority will be used against transgender passengers, who already suffer rampant discrimination at the hands of TSA officials. The AIT screening process is demonstrably discriminatory against transgender passengers; the scanners use a blue button and a pink button which is selected by TSA officials. The buttons calibrate the machine for cisgender anatomy and often flag “anomalies” when presented with the anatomy of transgender passengers, such as a woman (pink button) who has a penis, or a man (blue button) who has breasts. Because which button is pressed is at the discretion of the TSA agent, “anomalies” may also be flagged if the agent incorrectly genders an individual, such as pressing the blue button for a woman. Previously, some transgender passengers chose to avoid this discriminatory screening process by opting for the physical screening, but under the new procedure, they may no longer have that opportunity.

Accordingly, I have the following question: what assurances do transgender travelers have that this new authority will not be used to harass them, especially in light of TSA’s woeful record of discrimination against transgender people?

Sincerely,
— Emily T. Prince, Esq.

OPM Still Allowing Discrimination Against Trans Surgeries

The Office of Personnel Management has decided to continue to discriminate against transgender Federal employees and dependents, by allowing insurance plans to specifically exclude coverage for transition-related surgeries.

During the final years of the Obama Administration, OPM’s policy on Federal employee insurance coverage for transition-related care has been fraught. In June 2014 OPM issued a Federal Employee Health Benefits (FEHB) Program Carrier Letter on the subject, acknowledging that transition-related care is medically necessary and lifting a ban that had been present on “services, drugs, or supplies related to sex transformation.” Importantly, the carrier letter allowed carriers to maintain the exclusion, and over 95% of them did. This year, there was some initial hope of change when OPM issued its call letter (essentially the request for insurers to submit proposals for insurance plans), and specifically requested that insurers reconsider their coverage of transgender services. However, those hopes were quickly dashed, as OPM responded to questions about those requests by stating that there was no requirement that transition-related care be covered. OPM then quickly seemed to reverse course, in a June 2015 FEHB Program Carrier letter stating, “no carrier participating in the [FEHB] Program may have a general exclusion of services, drugs or supplies related to gender transition or ‘sex transformations.’” Since June, it has been a matter of waiting until plans were released to see how they responded.

Since then, at least two plans have released their official brochures on their websites. The Government Employees Health Association Benefit Plan and the Blue Cross and Blue Shield Service Benefit Plan (which in 2013 covered approximately 63% of Federal employees on its own and, to the best of my knowledge, remains the single insurer covering the majority of Federal employees and dependants) both specifically exclude “surgeries related to sex transformation.”

Now that it is confirmed that OPM is permitting such discrimination, it is reasonable to expect that many more insurance plans will similarly exclude transition-related surgeries, just as they continued to exclude coverage for all transition-related care for plan year 2015. This is a clear violation of 42 USC 18116 (also known as Section 1557 of the Affordable Care Act), in its discrimination against medical procedures solely on the basis of their relationship to gender transition.

Letter to OIRA Requesting Immediate Clearance of HHS Nondiscrimination Rule

On April 29, 2015 the White House received for review and clearance the Department of Health and Human Service’s regulation implementing 42 U.S.C. 18116, the Affordable Care Act’s nondiscrimination provision. The provision was subject to a request for comments in 2013, but the Department has consistently delayed the actual implementation of the provision. Prior guidance on the language told insurers that discrimination against transition-related care was legal. New regulations are necessary to undo this damage, and those regulations are currently stalled for White House review. Full text is below.

Continue reading →

The Wait for Promised Nondiscrimination Under the Affordable Care Act

Section 1557 of the Affordable Care Act, codified at 42 USC 18116, prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in “any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under” the Affordable Care Act (ACA). This means covered health programs and activities should include Medicare, Medicaid, insurance for Federal employees (administered by the Office of Personnel Management), insurance through the exchanges (which are established under the ACA), and insurance through employers (which receive Federal tax subsidies through the exclusion of premiums from taxation; this is admittedly a stretch, but one I think is justified). Which is to say, largely the entire universe of health insurance. Even if employer-based health insurance is excluded, the set of covered programs is still quite broad.

The Department of Justice (after losing in litigation on the question, Macy v. Holder) has determined that discrimination on the basis of sex includes discrimination on the basis of gender identity, as was widely reported in December.

This raises the question: why is it still legal for covered programs to discriminate on the basis of gender identity by excluding coverage for transition-related care (that is to say, care related to one’s gender identity)?

The answer, sadly, is that it is nominally legal for insurers to exclude coverage because the Obama Administration told them so. In an undated “Q&A” published in 2012 by the Department of Health and Human Services (HHS) likely triggered by the EEOC decision in Macy v. Holder, HHS states that discrimination on the basis of “sex stereotypes” is unlawful discrimination, before going on to state: “Does this mean that transition related surgery is required to be covered by health insurers? No.”

With one word, the Obama Administration signed off on widespread anti-trans discrimination in covered health programs.

Perhaps recognizing that its analysis was weak, in 2013 HHS rescinded the Q&A and submitted a request for comments. Comments were plentiful, including many LGBT organizations advocating on behalf of transgender people affected by the rampant discrimination in access to healthcare. HHS promised a new rule, but 2014 came and went without new action. Finally, on April 29, 2015, HHS finally sent the proposed rule to the White House for review prior to publication. There it currently sits; the most recent estimate of publication is that it will be published this month, in time for Pride.

The original HHS analysis was shoddy; a fair reading of the statute compels the interpretation that it is illegal under 42 USC 18116 to discriminate against transition-related care. However, there’s not yet any court presented with the question, and LGBT organizations are understandably loathe to bring a case while the Federal government continues to discriminate against its own employees. HHS’s last word on the topic was one word authorizing discrimination.

So we wait, and hope for better news.

Is OPM Requiring Coverage for Transition-Related Care under FEHB in Plan Year 2016?

UPDATE: Reporting by BuzzFeed News indicates that OPM has decided to wait and see what insurance plans propose before deciding whether or not to permit plans to maintain the general exclusion. Mara Keisling of the National Center for Transgender Equality responded:

“It’s not OK for an employer to say to insurance companies, ‘We don’t care if you discriminate against our employees,’” Keisling told BuzzFeed News. “It is just straight-up discrimination, and they can fix it any time they want.”

On March 13, 2015, the U.S. Office of Personnel Management (OPM) Healthcare and Insurance Division issued Federal Employee Health Benefits (FEHB) Program Carrier Letter No. 2015-02, its “annual call for benefit and rate proposals from FEHB Program carriers.” The letter establishes what OPM expects for FEHB Program participants in contracting with the Federal government to provide health insurance to Federal employees. In the call letter, OPM states:

OPM strongly encourages plans to reassess their benefit offerings as the needs of our population evolve. In recent years, FEHB has welcomed young adults up to the age of 26 and same sex spouses as covered family members. To further ensure that members can access appropriate care, we provide the following guidance:
…
Transgender Services – In June 2014, OPM recognized the evolving professional consensus that treatment may be medically necessary for gender dysphoria, and removed the FEHB requirement to exclude services, drugs, or supplies directly related to transition. Due to the short timeframe for network development and benefit design, OPM permitted plans to retain the general exclusion of these services for the 2015 plan year. For 2016, plans may propose services for members with gender dysphoria as they do for all other medical conditions. Plans offering surgical services must include details of preauthorization or case management requirements to facilitate referrals to qualified providers of this specialized care.

Emphasis added. Given the context of a call letter (essentially a request for contract proposals from Federal contractors), this language may mean that OPM will no longer accept contract proposals which categorically “services, drugs, or supplies related to sex transformation,” as it accepted in years past. This interpretation is bolstered by the publication on March 17, 2015 of FEHB Program Carrier Letter No. 2015-03(a), “2016 Technical Guidance and Instructions for Preparing HMO Benefit and Service Area Proposals.” Again related to expanding access to care in the section labeled “Call Letter Initiatives,” the guidance states:

Transgender Services: Beginning with 2016 brochures, Plans should describe their covered benefits for gender transition along with any excluded services, and list any applicable prior authorization requirements or age limits.

While this is weaker than the commanding language usually used in Federal regulations, it is important to remember the context that OPM is technically soliciting contracts rather than writing rules, and thus does not need to use command words such as “shall” in place of “should.” Update: in response to questions, the use of “along with any excluded services” does not necessarily imply that categorical exclusions are still permitted; it could reference exclusions such as excluding all self-injectable medication.

Given the above, it’s worth asking: what is OPM’s policy on exclusions for transition-related care in plan year 2016? When I reached out for comment from OPM’s Office of Diversity and Inclusion, I received an immediate response from the Director, Veronica Villalobos, indicating they were looking into my inquiry.

Petition to Dept. of Education – Formal Interpretation of Title IX to Protect Trans and Non-Binary Students

Given the rash of anti-trans legislation and school board actions in recent months, the Department of Education’s January 7, 2015 letter on trans students and restroom access is proving insufficient to encourage compliance with Federal law on this point, which is that:

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.

As such, today I filed a formal Petition for Interpretation under the Administrative Procedure Act with the Department of Education’s Office of Civil Rights. The Petition does not call for a new interpretation of Title IX, but rather asks the Department of Education to reissue its existing interpretation in a more formal way to put the regulated community of school districts, as well as state legislatures, on notice of what is expected of them with respect to transgender and non-binary students.