Monthly Archives: April 2015

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.

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Op-Ed at the Advocate: Bathrooms as the Next LGBT Battleground

I recently wrote an op-ed for the Advocate, discussing the rash of anti-trans legislation focused on bathrooms.

With the Supreme Court poised to strike down bans on same-sex marriage nationwide this summer, focus is likely to shift to issues that have been sidelined in favor of fighting for marriage rights. If conservatives have anything to say about it, that focus will be on sex-segregated public facilities such as restrooms, locker rooms, and the like.