Tag Archives: Office of Personnel Management

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.

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.

OPM no timeline on response to Petition

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?

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.

Questions for USOPM Director of Diversity and Inclusion Regarding Trans-Exclusionary Federal Insurance Policies

Today, the Department of Transportation Office of Civil Rights announced its 2015 DOT Civil Rights Virtual Symposium.  The Symposium includes the following program:

“Dear OPM: I have a problem, what do I do?”
Veronica Villalobos, Director, Office of Diversity and Inclusion, Office of Personnel Management
This “Dear OPM” session will feature a column style conversation addressing guidance on inclusion efforts in the Federal workplace such as transgender policies, religious accommodation, pregnancy, disability, among others.

I have attempted to correspond with Ms. Villalobos and her office several times in an effort to get an answer on the trans-exclusionary health insurance policies offered to Federal employees by OPM.  So far, OPM has steadfastly refused to say anything more.

As an attendee of the program I was given the opportunity to ask a question.


 

Veronica Villalobos
Director
Office of Diversity and Inclusion
U.S. Office of Personnel Management
veronica.villalobos@opm.gov

Dear Ms. Villalobos:

Before I ask my question, I’d like to thank your office for the 2011 guidance on gender identity issues that may arise in the workplace, particularly when an employee transitions at work. I know that the guidance has helped many trans people; I know it helped me when there were some individuals who didn’t understand that, as a woman, I would be using the women’s restroom at work. As the Department of Labor considers how to implement Executive Order 13672, prohibiting discrimination on the basis of sexual orientation and gender identity by Federal contractors, they should look to OPM’s leadership on the issue.

My question comes to that leadership, and where it has unfortunately been lacking. In June 2014, after many delays and a nontrivial amount of litigation, OPM finally made a minor update to its policy on gender identity with respect to health insurance. In FEHB Program Carrier Letter 2014-17, OPM claimed to “remove the requirement” that all FEHB brochures exclude “services, drugs, or supplies related to sex transformations” categorically, regardless of medical necessity. Instead, carriers would now have “one of two options” – covering this care without discriminating on the basis of gender identity, or maintaining the general exclusion and denying medically necessary care on the basis of gender identity.

If you’ll forgive a brief aside, it’s worth noting here that OPM later admitted in a FOIA response that there was no such requirement on record. One year prior, in plan year 2014, one health insurance carrier, Kaiser in California, offered trans-inclusive health insurance, despite the purported requirement, with full knowledge and consent of OPM. There was no requirement – there was a practice, a practice OPM’s carrier letter permitted to continue.

Digression aside: OPM’s minor update to its policy on gender identity and health insurance led to only a minor change. Of the 304 FEHB plans, 15 (or less than 5%) eliminated the discriminatory provision. Under current OPM policy, the other 289 health insurance carriers (including the single carrier insuring over 63% of Federal employees) may continue to exclude care solely because it is a “service, drug, or supply related to sex transformations.” That means that even if a service is covered, if it is related to a “sex transformation” (i.e. medical transition, described using grossly offensive language), a carrier may exclude it. Under FEHB regulations, OPM accepts legal responsibility for each of these health insurance plans.

The Department of Justice is filing briefs stating that discrimination on the basis of gender identity is discrimination on the basis of sex. Under the 2012 EEOC decision Macy v. Holder, such discrimination is illegal. Under Title VII, such discrimination is illegal. Under Executive Order 13672, such discrimination is illegal.

Here is my question:

Can we hope that the Office of Personnel Management will prohibit trans-exclusionary health insurance policies in plan year 2016?

Until then, why does the Office of Personnel Management continue to tolerate discrimination on the basis of gender identity within the express terms of the contracts it makes with health insurance plans?

When the Office of Personnel Management’s Office of Diversity and Inclusion updated its regulations on nondiscrimination provisions, why did it choose to ignore its FEHB contracts?

Why has your own office failed to respond to these issues when brought to your attention, such as the letter I sent your office on December 9 and January 15, or the work of any number of organizations advocating for transgender equality, or amidst a quiet but steady stream of litigation on this issue?

When will the Office of Personnel Management show leadership and ban trans-exclusionary health insurance policies, so that the Department of Labor and the Department of Health and Human Services can enforce the Affordable Care Act’s prohibition on discrimination on the basis of gender identity for all Americans?

Quite simply, the effort to ban health insurance contracts that discriminate on the basis of gender identity cannot succeed through Federal action until the Federal government ends its own discrimination against transgender Federal employees. Until your office acts, the Department of Labor and the Department of Health and Human Services are hamstrung in any efforts they may make to eliminate such discrimination – after all, the Federal government permits the discrimination for its own employees.

Sincerely,

— Emily T. Prince, Esq.

New Letter to OPM: Failure to Timely Respond to Petition for Trans-Inclusive Health Insurance for Federal Employees

UPDATE: Ms. Wong is, as of October 2014, on the Board of Governors for the Human Rights Campaign. That would seem to be a conflict, since HRC is theoretically opposed to Ms. Wong’s activities at OPM. At OPM, she is responsible for a recent nondiscrimination rule that failed to address ongoing and persistent illegal discrimination by OPM against transgender Federal employees.

Sharon Wong
Deputy Director for Coordination and Policy
Office of Diversity and Inclusion
Office of Personnel Management

Transmitted via email

Ms. Wong,

I’m not sure what cause there is for the delay in response to my Petition for Reconsideration, filed with your office on August 25, 2014. While I’ve been unable to find OPM’s rules of practice for Petitions for Reconsideration, I do know that my employing agency handles them much quicker by rule. 49 CFR §211.31 provides a period of four months for responses to Petitions for Reconsideration, and that is for an agency that regularly promulgates technically complicated rules with net societal benefits in the billions of dollars.

It has been over four months since my Petition was filed. OPM’s failure to respond to my Petition in a timely fashion is demonstrative of OPM’s general failure to treat transgender Federal employees with respect. This lack of respect is exemplified by the June 13, 2014 FEHBP carrier letter 2014-17 in which OPM acknowledged that transition-related care is medically necessary but nonetheless, in defiance of Macy v. Holder, continues to allow insurers to discriminate on the basis of transition in their offerings of health insurance coverage. This lack of respect was further demonstrated on November 24, 2014, when OPM answered a question about the matter during a Google Hangout on Federal benefits by simply reiterating the contents of the offending letter.

I continue to look forward to a substantive response from your office, as well as looking forward to the day when I am not discriminated on the basis of my gender identity as a Federal employee.

Sincerely,
— Emily T. Prince, Esq.

cc: Kamala Vasagam, General Counsel, Office of Personnel Management

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?

Sincerely,
— Emily T. Prince, Esq
http://www.emily-esque.com

cc:
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

Attachment:

OPM Continues to Have Nothing New to Say about Anti-Trans Discrimination

Since June 13, 2014, it has been the explicit policy of the U.S. government to discriminate on the basis of gender identity with respect to health insurance.

I have attempted since that date to get the Administration to rectify this discrimination.  It has failed to do so.

In a November 24 discussion of Federal benefits, the Office of Personnel Management chose to address the question squarely:

https://twitter.com/emily_esque/status/536863422621962240

Here’s the offending language:

OPM CL 2014-17 Excerpt

You might notice that the woman called on to respond is reading the June 13 letter that was referenced in my question, which she clearly had at the ready to read, verbatim, as an answer to the question.  This is what OPM considers “responsiveness.”

The gentleman hosting that call was Alan P. Spielman, Assistant Director for Federal Employee Insurance Operations in OPM’s Healthcare and Insurance Program Division.  Sometime that same day, November 24, 2014, Mr. Spielman signed the response to my FOIA request of July 29, 2014.  Again, this is what OPM considers “responsiveness.”

In that FOIA response, OPM provides a complete list of plans that do not discriminate on the basis of gender identity.  There are 304 FEHB plans.

Screen Shot 2014-11-25 at 7.43.46 PM

That’s 15.  15 plans out of 304, or less than 5%, do NOT discriminate on the basis of Gender Identity.

Under current OPM policy, the other 289 health insurance carriers may continue to exclude care solely because it is a “service, drug, or supply related to sex transformations.”  That means that even if a service is covered, if it is related to a “sex transformation” (i.e. transition, described using the most offensive language possible), a carrier may exclude it.  Under FEHB regulations, OPM accepts legal responsibility for each of these health insurance plans.

Under Macy v. Holder, such discrimination is illegal.  Under Title VII, such discrimination is illegal.  Under the President’s Executive Order of July 21, 2014 (EO 13,672) such discrimination is illegal.

The Office of Personnel Management clearly does not care.

Thanks to Amélie E. Koran for compiling information on the total number of plans and their general lack of trans-inclusiveness.

Response to Continued OPM Stonewalling

I don’t normally post every back-and-forth in my attempts to shake things loose from the bureaucracy (as there are many and they are generally boring). However, it has been 68 days since I submitted a FOIA request to OPM requesting the responses to Federal Employee Health Benefits (FEHB) Program Carrier Letter 2014-17 (which announced that OPM would continue to discriminate on the basis of gender identity at the behest of insurers) in order to get a sense of how many insurers would actually be offering trans-inclusive health insurance in plan year 2015.  To date, OPM has failed to respond to the FOIA request, including not even acknowledging receipt.

Since they’ve decided to stonewall, I’ve decided to escalate.  First, I’ve now included the Office of Civil Rights at my employing agency, since OPM is continuing to discriminate against all transgender Federal employees, myself included.

Second, in the coming days, I will be referring the matter to my Senator, Sen. Tim Kaine, because letters from the Hill tend to actually force responses loose from Federal agencies.  The letter will also address the complete lack of response OPM has had to my Petition for Reconsideration, filed back in August, to their “nondiscrimination” rule that still allows discrimination against transgender Federal employees through FEHB.

By the time I receive a response, it may well be “open season,” the period of the year when insurers plans for the next year are posted online for anyone to review any plan.  However, I nonetheless hope OPM responds, as manually culling through volume after volume of plan brochures to find which are discriminating and which are not is a heap of unnecessary work given that OPM requested (and presumably received) a simple list of which insurers are which.

2014 07 29 - OPM FOIA Request for Plan Response to CL 2014-172014 10 05 - Third FOIA Attempt to OPM - Insurer Responses to FEHB CL 2014-17