Insurers Can't Deny Gender Transition Treatment Under U.S. Plan

  • Categorical exclusion of coverage would be blocked in proposal
  • HHS Department's rules open to public comment until Nov. 6

Transgender individuals would gain new health-care protections in rules proposed today by U.S. regulators.

Under the rules, discrimination against transgender people would be a form of sex discrimination. That would block insurers from categorically denying coverage for treatments that help people transition to another gender, according to a fact sheet released today by the Department of Health and Human Services. Some exclusions for transition treatments will be evaluated case-by-case, the agency said.

“Individuals cannot be denied health care or health coverage based on their sex, including their gender identity,” the agency said. “Explicit categorical exclusions in coverage for all health-care services related to gender transition are facially discriminatory.”

Transgender is a broad term that refers to people who identify themselves as different from their sex at birth.

The rules would apply to insurers and health-care providers that get funding from the health department. That includes insurers that participate in government-run marketplaces or sell Medicare Advantage plans, and the rules would also apply to those insurers’ private-employer plans. 

The proposal is open to public comment until Nov. 6. The rules build on a portion of the Patient Protection and Affordable Care Act that prohibits discrimination in health-care programs.

"This rule does not require that any particular services be provided," said Jocelyn Samuels, director of the health department’s Office for Civil Rights, on a conference call with reporters. "It does require that insurers apply non-discriminatory criteria to assessing the services that they will cover."

Aetna’s Rules

Insurers’ current policies vary for transition treatments. For example, Aetna Inc. covers surgery to reshape genitals or remove breasts, as well as hormone therapy. The company doesn’t pay for procedures that it considers cosmetic, such as operations to augment breasts or reshape an individual’s face, said Bob McDonough, senior director for clinical policy research and development.

Transgender individuals typically receive testosterone or estrogen prior to undergoing surgery, and the treatment continues after reassignment procedures, according to Joshua Safer, an associate professor of endocrinology at Boston University’s medical school. Transgender women can also receive drugs that block the effects of testosterone.

“These proposed rules have the potential to increase fairness and access in health care for many, many people across the country, but they could be lifesaving for transgender people,” said Harper Jean Tobin, director of policy at the National Center for Transgender Equality. “There’s a medical consensus that transgender care is medically necessary and should be covered.”

Under the government proposal, insurers also can’t restrict services based on gender identity. For instance, insurers would still be required to pay for a medically necessary ovarian cancer treatment for someone who identifies as a man, the health department said.

Ten states and Washington, D.C., already prohibit insurance exclusions for transgender health care, according to Tobin’s group.

The rules proposed Thursday also require health-care providers to take more steps to communicate with people who don’t speak English or who have disabilities. And they prohibit marketing practices in health-care marketplaces and insurance benefit designs that are discriminatory.

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