Tag Archives: Department of Health and Human Services

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 EmpireThis 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.

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.

Letter to FDA: Decision of Blood Products Advisory Committee Regarding “MSM” Ban

UPDATE (December 23, 2014 4:00 pm): I contacted the FDA to inquire again about the policy, since I continue to see it referred to as a ban on “men who have sex with other men” and was told that the office was “reluctant” to issue a response prior to announcing today’s potential policy shift, even though my question doesn’t relate to the change from lifetime deferral to one-year celibacy period.

Lorrie H. McNeill
Office of Communication, Outreach and Development
Center for Biologics Evaluation and Research
Food and Drug Administration
10903 New Hampshire Avenue
Building 71 Room 4120
Silver Spring, MD 20993-0002

Transmitted via e-mail

Re: Decision of Blood Products Advisory Committee Regarding “MSM” Ban

Dear Ms. McNeill,

I was disappointed to hear of the recent decision by the FDA’s Blood Products Advisory Committee to remain silent on the question of whether to eliminate the ban on blood donation from “men who have sex with other men at any time since 1977,” sometimes referred to as the “MSM” ban. However, when I contacted your office for more information I was horrified to hear confirmed that the FDA, to this very day, considers sex assignment at birth both immutable and internet, such that transgender women and other individuals assigned male at birth are perpetually considered “men” for the purposes of the ban.

This fact underscores the arbitrary and capricious nature of the “MSM” ban. Rather than looking at actual risk factors, the FDA has concluded that if a person born with (probably) a penis and assigned male at birth, the fact of that person’s sexual interaction with another person born with (probably) a penis and assigned male at birth renders both individuals categorically tainted and ineligible to donate blood. The set of people affected by the “MSM” ban includes the following pairs:

  • a cisgender heterosexual man who has a sexual relationship with a transgender heterosexual woman;
  • a transgender homosexual woman who has a sexual relationship with another transgender homosexual woman;
  • a transgender bisexual woman who has a sexual relationship with a genderqueer person assigned male at birth; and
  • a genderqueer person assigned male at birth who has a sexual relationship with a cisgender bisexual man.

This policy creates significant harm to transgender people and people with non-binary gender identities, for instance by reifying the false belief that transgender women are “actually men.” This incorrect understanding of what it means to be transgender underlies so much discrimination against transgender people. In a month where the Department of Labor has finally begun the hard work of eliminating discrimination on the basis of sexual orientation and gender identity among Federal contractors, the FDA’s Blood Products Advisory Committee’s decision is particularly frustrating.

When the full reach of the “MSM” ban is stated, the purported basis for the ban falls away. The policy can include cisgender men of any sexual orientation, transgender women of any sexual orientation, and anyone with a non-binary gender identity who was assigned male at birth who has sexual relationships with anyone else assigned male at birth. Yet the FDA, in defiance of its own acknowledged interpretations, continues to refer to it as a ban on donations by “men who have sex with men” and defends it against salient attacks by the American Red Cross, the American Association of Blood Banks, America’s Blood Centers, the American Medical Association, and patient groups such as the National Hemophilia Foundation. In response to the sound science presented by these organizations, the FDA responds with flawed statistics about “men who have sex with men” without even acknowledging the full set of people impacted by the ban.

Were the FDA to attempt to defend its actual policy, rather than the straw-man it has created, it would be forced to admit that sex assignment at birth does not meaningfully impact the risk of contracting HIV, and that there are too many confounding variables in the total population affected to justify categorically prohibiting all donations from that population for life.

I look forward to hearing from your office regarding how the FDA will improve its rules regarding blood donations in the future to eliminate this arbitrary and capricious ban.


Emily T. Prince, Esq.

Jocelyn Samuels, Director, Office of Civil Rights, U.S. Department of Health and Human Services

Letter to Department of Labor: Request for Administration Position on Trans-Exclusionary Insurance Contracts

Ms. Debra A. Carr
Director, Division of Policy and Program Development
Office of Federal Contract Compliance Programs
Department of Labor

Transmitted via e-mail

Dear Ms. Carr:

Thank you for your hard work to complete the regulations required by Executive Order 13,672, prohibiting discrimination on the basis of sexual orientation and gender identity by Federal contractors. However, in the Department’s haste to publish the regulation after years of review, many unanswered questions remain. I would welcome the opportunity to work with your office to address these questions. This letter pertains to a particularly pervasive and toxic form of discrimination on the basis of gender identity: insurance contracts that, despite generally applicable coverage, deny coverage for claims that relate to being transgender.

In the attached audio file, CareFirst BlueCross BlueShield, a Federal contractor, admits that their policies deny coverage on the basis of gender identity. Presumably, discrimination of such a direct and overt form must be prohibited by the new rules, but when I contacted your office for an opinion on a similar fact pattern, I was told that the Office of Federal Contact Compliance Programs had no legal opinion on the matter. This was somewhat surprising, since the matter was discussed with OFCCP several weeks prior through the Office of Information and Regulatory Affairs.

While the recorded conversation pertained to plans available under the Federal health insurance exchanges, CareFirst Blue Cross, like 95% of FEHB insurance carriers providing insurance services under contract with the Federal government, states in their plan language that they categorically exclude “services, drugs, or supplies related to sex transformation.”  According to the Office of Personnel Management in its FEHB Program Carrier Letter 2014-17, issued June 13, 2014, such exclusions are entirely legal, even when performed by the Federal government itself.

Similarly, the Department of Health and Human Services Office of Civil Rights previously stated for over a year and as recently as August 2, 2013 that such discrimination was permissible under 42 USC §18116, though declined to provide the basis upon which it reached that determination. The statement was subsequently removed from the Department of Health and Human Services website before the end of August 2013 without comment. While a Request for Information was published in August 1, 2013 and many commenters addressed the insidiousness of this form of discrimination, the Department of Health and Human Services has yet to react to the information submitted. In the Fall 2014 Unified Agenda, the Department of Health and Human Services announced that it would not be publishing even a proposed rule on the topic until April 2015, over 5 years after the passage of the statute to be interpreted.

This dramatic discrepancy between the rhetoric of the Administration and the implementation of policy raises the question: will the Administration continue to tolerate discrimination on the basis of gender identity in the context of health insurance?  If so, upon what basis does the Department of Labor conclude that a Federal contractor stating directly that they are intentionally discriminating on the basis of gender identity is not a violation of Executive Order 13,672, Title VII of the Civil Rights Act, and other prohibitions against discrimination on the basis of sex, including discrimination on the basis of gender identity?  If the Administration does not intend to tolerate this discrimination, how much longer must the transgender community wait for action?

Similarly, does the Office of Diversity and Inclusion in the Office of Personnel Management or the Office of Civil Rights in the Department of Health and Human Services have any response?

— Emily T. Prince, Esq

Jocelyn Samuels, Director, Office of Civil Rights, Department of Health and Human Services
Veronica Villalobos, Director, Office of Diversity and Inclusion, Office of Personnel Management


Some Notes on OPM “Lifting a Ban” on Transition-Related Care

UPDATE: On August 25, 2014 OPM responded to my FOIA request and formally acknowledged that no “requirement to exclude” transition-related care existed.

Yesterday the Office of Personnel Management (OPM) – succinctly described as the head human resources department for the Federal government at large – issued a “carrier letter” (the Carrier Letter)[1] to health insurance providers participating in the Federal Employees Health Benefits Program (FEHBP).  The letter indicated that OPM was lifting a requirement[2] that transition-related care (or, in their terms “services, drugs or supplies related to sex transformation”) be excluded from FEHBP plans, but stopped short of mandating that transition-related care affirmatively be included.  Prominent LGBT organizations such as the Human Rights Campaign (HRC) and the National Center for Transgender Equality (NCTE) praised the move[3] as a step forward.  I remain skeptical however, and posted a host of concerns about the action to Twitter; some of these concerns were republished in the Advocate.[4]  However, because Twitter is not an ideal platform for legal analysis, and because as a lawyer I find it difficult to use one word where I could use ten, I am taking a moment to recompile my argument and concerns into a more coherent form.

One important thing to remember in the context of trans-inclusive healthcare is that there are a number of balls in the air right now, mostly being juggled by the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB).  OIRA’s role in the rulemaking process focuses on ensuring consistency in regulations government-wide as well as reducing regulatory burdens.  As implementation of the Affordable Care Act (ACA or “Obamacare”)[5] continues, there are a number of healthcare nondiscrimination rules in various stages of the rulemaking process.  On May 27, after receiving clearance from OIRA,[6] the Department of Health and Human Services (HHS) published a final rule[7] which, among a great many other things, prohibited discrimination on the basis of gender identity as a variety of discrimination on the basis of sex, consistent with the Equal Employment Opportunity Commission’s (EEOC) ruling in Macy v. Holder.[8]  However, neither the rule itself nor the preamble to the rule published in the Federal Register define what constitutes such discrimination, leaving a substantial question to be answered.

Meanwhile, as of May 8, 2014, OPM has had its own general nondiscrimination final rule under review by OIRA.[9]  The proposed regulation, published on September 4, 2013,[10] prohibits employment practices discrimination on the basis of gender identity, again as a variety of discrimination on the basis of sex.  The proposed rule did not specify what impact, if any, this would have on OPM review of FEHBP plans.  The final rule is scheduled to be published this month, according to the Unified Agenda of Federal Regulatory and Deregulatory Actions, published May 23, 2014.[11]

Finally, and most importantly, HHS is currently drafting an interpretation or regulation implementing 42 USC 18116,[12] the provision of the ACA that bans discrimination on the basis of sex (and therefore also on the basis of gender identity).  That document was, as of the May 23, 2014 publication of the Unified Agenda, slated for publication by August 2014.  Because 42 USC 18116 reaches Medicare, Medicaid (as expanded in many states by the ACA), the exchanges, FEHBP, other government health insurance programs such as SCHIP, and possibly more, it is easy to see why the rule is important.[13]  Unfortunately, the HHS decision-making process is opaque, and outside advocates are left only with small clues as to how the Administration may be leaning on transition-related care.[14]  Until recently (at least as late as August 2013), HHS stated on its website that transition-related care was not required as a result of the nondiscrimination statute.[15]  The Q&A within which that statement appeared has since been removed from the HHS website.  Contemporaneous with the removal, HHS published a formal Request for Information in the Federal Register on August 1, 2013, seeking information on “experiences with discrimination in health programs or activities,” including discrimination on the basis of gender identity as a variety of discrimination on the basis of sex.  The request for information, combined with the removal of the Q&A, gave cause for hope that HHS would prohibit exclusions for transition-related care as discriminatory, especially when combined with the May 30, 2014 ruling by an HHS administrative adjudicatory body that Medicare’s categorical ban on coverage for “transsexual surgery” was invalid.[16]

Given the context of one recently-published HHS regulation on nondiscrimination, one OPM regulation on nondiscrimination currently review at OIRA, and the critical HHS rule interpreting what “nondiscrimination” means in the context of health insurance and transgender patients, the important question is:  what did we learn from the OPM carrier letter about how the Administration views the exclusion of transition-related care and nondiscrimination provisions?  Here is where my disagreement with HRC and NCTE lies.  Viewed in isolation, OPM making clear that transition-related care is medically necessary and explicitly authorizing plans to cover such care would be a small but unequivocally positive step towards trans-inclusive health insurance for all.  However, when viewed as a policy decision made by agencies with internal preferences that are revealed through actions such as these, the decision to lift a purported ban[17] but nonetheless permitting trans-exclusive policies generates quite a bit of concern.  That policy decision suggests that OPM, and possibly OIRA and HHS, may be ready to take the public position that plan language explicitly excluding coverage for “sex transformation” is somehow not discriminating on the basis of sex or gender identity.  Other hypotheses have been raised to explain the decision, such as the idea that OPM does view the exclusion language to be discriminatory but is exercising enforcement discretion on behalf of insurers who feel incapable of removing the exclusion for plan year 2015.  This sort of hypothesis is consistent with the evidence available, but raises new questions, such as why OPM would not admit that position directly.

It is possible that yesterday’s announcement was a step forward and that the HHS interpretation of the ACA’s nondiscrimination language will finally bring trans-inclusive health insurance to a large set of people who need the coverage.  However, with the evidence we have, it seems far too early for celebration.  Yes, the carrier letter issued yesterday suggests some number of trans Federal employees will have access to trans-inclusive health insurance, but that may have been a harbinger of coming disappointments in the fight for everyone to have access to affordable transition-related care.  That war continues, and it’s important to be able to distinguish a tactical retreat by the opposition from an actual victory.

[1] John O’Brien, Director – Healthcare and Insurance, Office of Personnel Management, “Gender Identity Disorder / Gender Dysphoria,” Carrier Letter No. 2014-17, issued June 13, 2014.  http://www.opm.gov/healthcare-insurance/healthcare/carriers/2014/2014-17.pdf

[2] Note that the Carrier Letter referenced in Note 1 does not specify what “requirement” it is lifting.  No regulatory provision is cited, nor does OPM reference a prior carrier letter requiring such exclusions.  A search of publicly-available records indicates no such requirement exists.  While OPM did include such exclusions within plan brochure templates for use by insurance carriers, those brochures were informal guidance and not a statement of agency policy as to what benefits were or were not required in order to participate in FEHBP.  Unless and until OPM produces records indicating that such a requirement actually existed, there is no basis to believe that the Carrier Letter actually lifted an OPM requirement that insurers exclude transition-related care.

[3] Chris Geidner, “Exclusive: Feds to Lift Ban on Federal Employee Insurance Coverage of Sex-Reassignment Surgery,” published June 13, 2014, available at http://www.buzzfeed.com/chrisgeidner/feds-to-lift-ban-on-federal-employee-insurance-coverage-of-s (“In a statement, Human Rights Campaign Government Affairs Director David Stacy said, ‘Today’s welcome decision by the Office of Personnel Management to remove this discriminatory and harmful exclusion is an important step towards closing the gap in access to quality health care for transgender workers. HRC urges FEHB insurance carriers to include this essential coverage in their plans so that federal workers have access to medically necessary transition-related care.’”); National Center for Transgender Equality, “Victory! Federal Government Modernizes Health Insurance,” published June 13, 2014, http://transgenderequality.wordpress.com/2014/06/13/victory-federal-government-modernizes-health-insurance/.

[4] Parker Marie Molloy, “Federal Employee Health Plans Can Now Include Transition-Related Health Care,” June 13, 2014, http://www.advocate.com/politics/transgender/2014/06/13/federal-employee-health-plans-can-now-include-transition-related.

[5] Public Law 111-148, “Patient Protection and Affordable Care Act” and Public Law 111-152, “Health Care and Education Reconciliation Act of 2010,” available at http://housedocs.house.gov/energycommerce/ppacacon.pdf.

[7] Department of Health and Human Services, “Patient Protection and Affordable Care Act; Exchange and Insurance Market Standards for 2015 and Beyond,” 79 Fed. Reg. 30239 (May 27, 2014), available at https://www.federalregister.gov/articles/2014/05/27/2014-11657/patient-protection-and-affordable-care-act-exchange-and-insurance-market-standards-for-2015-and.

[8] Macy v. Holder, EEOC Appeal No. 0120120821 (April 20, 2012), available at http://www.eeoc.gov/decisions/0120120821%20Macy%20v%20DOJ%20ATF.txt.

[10] Office of Personnel Management, “Nondiscrimination Provisions,” 78 Fed. Reg. 54434 (Sept. 4, 2013), available at https://www.federalregister.gov/articles/2013/09/04/2013-21486/nondiscrimination-provisions.

[12] 42 USC §18116, “Nondiscrimination,” (also referred to as Pub. L. 111-148, Title I, §1557), available at http://www.gpo.gov/fdsys/pkg/USCODE-2010-title42/html/USCODE-2010-title42-chap157-subchapVI-sec18116.htm.

[13] See, for example, Department of Health and Human Services, “Section 1557 of the Patient Protection and Affordable Care Act,” available at http://www.hhs.gov/ocr/civilrights/understanding/section1557/.

[14] For an example of such attempts to interpret what little information we have, see for instance Andy Medici, “Is the Administration Moving to Include Transgender Care in Federal Health Insurance Coverage?” Dec. 9, 2013, http://blogs.federaltimes.com/federal-times-blog/2013/12/09/is-the-administration-moving-to-include-transgender-care-in-federal-health-insurance-coverage/.

[16] Department of Health and Human Services Departmental Appeals Board, Docket No. A-13-87, Decision No. 2576, May 30, 2014, available at http://www.hhs.gov/dab/decisions/dabdecisions/dab2576.pdf.

[17] See note 2, above, on why it should not be taken as given that such a ban existed.