By: Luz Beato
Transgender advocates secured another important win in the fight for equal access to healthcare when, for the first time, the Department of Health and Human Services (HHS) panel held that a private insurer providing coverage through Medicare must cover gender confirmation surgery.[1] Gender confirmation surgery refers to genital reconstruction or a non-genital surgical procedure performed on a transgender person to better reflect their gendered self.[2] In a decision issued January 21, 2016, the Medicare Appeals Panel held that the plan must cover the required surgery because it is reasonable and necessary to treat the enrollee’s gender identity dysphoria.[3]
In its historic May 2014 decision, HHS lifted Medicare’s 33-year ban on transition related surgeries.[4] The Board held that denial of coverage was no longer reasonable in light of medical standards of care since the ban was enacted.[5] HHS held that gender confirmation surgery is a “safe, effective, and not experimental” treatment for individuals suffering from gender identity dysphoria.[6] However, this was only a partial victory because this ruling did not bar contractors from denying individual claims or addressing treatments other than gender confirmation surgery.[7]
In November of that year, Air Force veteran Charlene Lauderdale requested that her plan with United Healthcare, run through Medicare Advantage, authorize her gender confirmation surgery. United Healthcare (“the plan”) originally denied the claim, concluding that the surgery was “not a benefit,” and thus not covered by the plan.[8] On review, the plan upheld the denial claiming that, although the surgery was now coverable under Medicare after the 2014 decision, the surgery was not medically reasonable because of the enrollee’s “psychiatric instability.”[9] The Administrative Law Judge (ALJ) rejected the plan’s holding, finding that the enrollee satisfied all standards set by the World Professional Association for Transgender Health (WPATH).[10] WPATH articulates a psychiatric, psychological, medical, and surgical management standard for transition-related care.[11] The Council upheld the ALJ’s determination that WPATH standards are reasonable guidelines to determine whether a requested service is “necessary and reasonable” and whether the patient has the “capacity to make a fully informed decision.”[12] This decision was significant because it sends a message to insurance providers that arbitrary obstacles for determining who is qualified for gender confirmation surgery will not be tolerated.
The impact this decision will have cannot be overstated when gender confirmation surgeries can cost up to $25,000 for trans women and up to $100,000 for trans men.[13] These costs are prohibitively expensive when many transgender individuals face employment discrimination and high levels of unemployment.[14] Making matters worse, no federal law protects transgender workers against discrimination on the basis of gender identity.[15] As a result, transgender workers report twice the level of unemployment and income levels below the poverty level.[16]
[1] United Healthcare/AARP Medicare Complete, MAC No. M-15-1069 (H.H.S. Jan. 21, 2016) [hereinafter United Healthcare] at 1.
[2] WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage for Transgender and Transsexual People Worldwide, World Prof. Ass’n for Transgender Health (June 17, 2008), https://www.wpath.org/site_page.cfm?pk_association_webpage_menu=1352&pk_association_webpage=3947.
[3] United Healthcare, supra note 1, at 8.
[4] NCD 140.3, Transsexual Surgery; DAB No. 2576 WL 2558402 (May 30, 2014) at 1.
[5] Id. at 7.
[6] Id at 8.
[7] Id. at 1.
[8] United Healthcare, supra note 1, at 2.
[9] Id. at 3.
[10] Id.
[11]World Prof. Ass’n for Transgender Health, supra note 2.
[12] United Healthcare, supra note 1, at 8.
[13] Dominic Holden, Genital Surgery Must Be Provided To Trans Woman Through Medicare Program, Buzzfeed (Jan. 29, 2016, 12:36 PM), https://www.buzzfeed.com/dominicholden/genital-surgery-must-be-provided-to-trans-woman-through-medi#.grGQyNMnv.html.
[14] District of Columbia Office of Human Rights, Qualified and Transgender (2015), https://ohr.dc.gov/page/QualifiedAndTransgender (reporting that 48% of employers indicated a preference for an applicant perceived as cisgender over a more qualified applicant perceived as transgender).
[15] Paul Guequierre, Transgender Workers at Greater Risk for Unemployment and Poverty, Human Rights Campaign (Sept. 6, 2013), https://www.hrc.org/blog/transgender-workers-at-greater-risk-for-unemployment-and-poverty.
[16] See id.