Category Archives: Trans-Inclusive Healthcare

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.

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.

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.

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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.

Supplemental Evidence for Petition for Reconsideration: Office of Personnel Management and Trans-Exclusionary Health Insurance Contracts

On August 25, 2014, I submitted a succinct Petition for Reconsideration to the Office of Personnel Management, asking that the agency reconsider its decision not to address discrimination on the basis of gender identity in Federal employee health benefits (FEHB) in its July 2014 rulemaking updating its nondiscrimination provisions. This discrimination was recently discussed during a BuzzFeed interview with the President.

While I was expecting a response in the coming weeks, I was concerned that my original Petition did not provide sufficient evidentiary support for OPM to do the right thing and end these discriminatory insurance provisions. As such, today I filed a supplement to the Petition, including statements on the issue from the University of California, San Francisco, Center of Excellence for Transgender Health, the World Professional Association for Transgender Health, Lambda Legal, the American Medical Association, the American Psychiatric Association, the American Psychological Association, the American Academy of Family Physicians, the American College of Nurse Midwives, the National Association of Social Workers, the National Commission on Correctional Health Care, and the American College of Obstetricians and Gynecologists. The supplement also makes clear the basis for potential litigation on the issue, including the President’s executive orders on discrimination on the basis of sex and gender identity, recent Equal Employment Opportunity Commission decisions, Federal statutes prohibiting discrimination on the basis of sex in health care activities, and the Fourteenth Amendment.

OPM has not yet provided a revised estimate of when it will be responding to the Petition.

UPDATE: OPM has acknowledged receipt of the supplement, but has declined to provide a revised estimate of when it will respond.

Question for President Obama on Trans-Exclusionary Health Insurance for Federal Employees

UPDATE: The full transcript of the interview is now available. Here’s the relevant exchange:

BuzzFeed News: I want to move to the big LGBT news of yesterday, but first we had a very specific question from a reader who worked for you, a federal lawyer who’s transgender named Emily Prince. Federal policy bars discrimination against transgender people under health care plans covered under the ACA, but federal worker plans largely don’t cover gender reassignment surgery. Should they?

Obama: You know, I haven’t looked at that policy. My general view is that transgender persons, just like gays and lesbians, are deserving of equal treatment under the law. And that’s a basic principle. As you mentioned, my sense is that the Supreme Court is about to make a shift, one that I welcome, which is to recognize that — having hit a critical mass of states that have recognized same-sex marriage — it doesn’t make sense for us to now have this patchwork system and that it’s time to recognize that, under the equal protection clause of the United States, same-sex couples should have the same rights as anybody else.

I’m grateful that BuzzFeed asked the question, and I’m disappointed but not surprised by the President’s decision to pay lip-service to transgender equality and then move to “more comfortable” ground of marriage equality. The Administration has been dodging this question for approximately eight months now. Hopefully the OPM response to my Petition for Reconsideration will be more substantive.

BuzzFeed is interviewing President Obama on Tuesday and soliciting comments from their readership. Since they’ve been so solid on trans issues, I’m hoping this question that I submitted (or one like it) makes it through:

Mr. President, while the Justice Department is arguing that discrimination against transgender people is illegal, why does your Administration still choose to discriminate against transgender Federal employees in our health insurance?

95% of plans say they won’t cover anything related to being trans, and your Administration decided again just last June to let them do that. When will transgender Federal employees be able to choose these plans, confident that our care will be covered?

Follow-up:
You said in the State of the Union you wanted to advocate for transgender people on the world stage. How can the U.S. be a credible voice on these issues while continuing to directly discriminate against trans people in employment, in military service, in health care?

In June 2014, the Office of Personnel Management announced it would “remove the requirement” for transition-related care to be excluded from health insurance coverage. This left the exclusion at the whim of insurance companies. Ever since, I have been pressing the Office of Personnel Management quite hard to ask – why were insurance companies permitted to continue discriminating against transgender Federal employees?

In July 2014, I held a meeting with the White House Office of Information and Regulatory Affairs to ask that question. They had no answer then. When the rule was published I submitted a Petition for Reconsideration, formally asking OPM to reconsider its decision to not address this ongoing discrimination on the basis of gender identity within the Federal government. I demanded the records that OPM held concerning the choices plans were making as to covering or not covering transition-related care. I continued to press OPM for answers during a November 2014 town hall with Federal employees, and they continued to have none. The records request was finally handled, with only a brief period between the response and the end of Federal open season, when Federal employees became locked into their health plans for another year.

In December 2014, associated with the Department of Labor rulemaking regarding Federal contractors, I sent a letter to OPM (alongside DOL) asking about this continued discrimination against transgender Federal employees. That letter has yet to receive a response.

Just two weeks ago, during a civil rights symposium at my employing agency, I sent OPM a question about trans-exclusionary health insurance for their open question-and-answer session on employment topics. OPM declined to respond, stating that a response would be provided in writing at a future date.

To date, OPM has yet to respond to my August 2014 Petition for Reconsideration, though they have suggested a response will be forthcoming this month. To date, OPM has not responded to my many questions circling around this key point:

Why were insurance companies allowed to continue to discriminate against transgender Federal employees by excluding coverage for transition-related care?

When will it stop?

Comment to NY Department of Health – Access to Care for Transgender Minors Through Medicaid

In mid-December the New York Department of Health published proposed regulations expanding Medicaid to include transition-related care (full regulatory text available here). Unfortunately, the proposed rule excludes payment for coverage for hormone replacement therapy or gender-affirming surgeries for those under the age of 18. While there are other issues (such as the extensive list of procedures not covered), I felt the denial of coverage for transgender teens was the most important element to address.

The PDF of the comment is available here; the full text of the comment is below.

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Unanswered Questions in Today’s Department of Labor Proposed Rule

Today’s Department of Labor proposed rule answers some, but not most, of the important questions left by the Department’s December regulation prohibiting discrimination by Federal contractors on the basis of sexual orientation and gender identity. Importantly, the proposed rule implements Macy v. Holder and makes clear that transgender employees must have access to restroom and other sex-segregated facilities consistent with their gender identity, and explicitly prohibits adverse actions against employees based on the fact of their transition from their sex designated at birth.

However, many questions remain. Perhaps the most important relates to employer-provided health insurance. While the proposed rule explicitly discusses several prohibited employment practices with respect to gender identity, the section concerning “other fringe benefits” such as health insurance is comparatively sparse. The proposed rule provides only that “it shall be an unlawful employment practice for a contractor to discriminate on the basis of sex with regard to fringe benefits.” The preamble is clear; discrimination on the basis of sex includes discrimination on the basis of gender identity. That would presumably mean that insurance contracts with clauses categorically excluding “services, drugs, or supplies related to sex transformation” would be unlawful employment practices under the proposed rule. The snag, of course, is that the above example language is present in over 95% of contracts for health insurance for Federal employees, including the single health insurance plan covering approximately 63% of Federal employees.

While it is difficult to imagine the Department of Labor declaring that the U.S. Office of Personnel Management is engaged in an unlawful employment practice, that is nonetheless the conclusion compelled by the proposed rule. It remains to be seen whether the Department of Labor will address this issue directly or will simply chose to quietly delay action in order to give OPM yet more time to come into compliance with its obligation to no longer discriminate on the basis of sex in its insurance contracts.

Emily Esque

Fighting for Justice through Bureaucratic Black Magic

Category Archives: Trans-Inclusive Healthcare

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

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

OPM Still Allowing Discrimination Against Trans Surgeries

Letter to OIRA Requesting Immediate Clearance of HHS Nondiscrimination Rule

The Wait for Promised Nondiscrimination Under the Affordable Care Act

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

Supplemental Evidence for Petition for Reconsideration: Office of Personnel Management and Trans-Exclusionary Health Insurance Contracts

Question for President Obama on Trans-Exclusionary Health Insurance for Federal Employees

Comment to NY Department of Health – Access to Care for Transgender Minors Through Medicaid

Unanswered Questions in Today’s Department of Labor Proposed Rule