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.