having trouble parsing new HHS rules for insurance companies
May 13, 2016 9:02 AM   Subscribe

Today the US Department of Health and Human Services (HHS) issued a final rule prohibiting denial of coverage based on gender identity. I am trying to figure out exactly what this means in my situation.

I am a trans male and I am in need of top surgery (breast removal). I have Cigna through my employer. I have contacted Cigna directly (several months ago) to ask if they covered this and they said normally yes, but my employer is self-insured and opted for a specific rider prohibiting gender transition related care [assholes].

I know that the HHS has ruled that Medicaid and Medicare must cover surgery. I also know that "Transgender patients who experience discrimination from service providers that accept Medicare, Medicaid, or other types of federal funding should file complaints of discrimination with HHS."

But I don't understand what any of this means FOR ME. If my surgeon accepts Medicare/Medicaid from other people, does that mean they also have to accept my insurance? Is my company's rider invalid? Is Cigna now forced to cover it? How do I go about making absolutely damn fucking for certain sure before I drop $10k on surgery?
posted by AFABulous to Law & Government (13 answers total)
To clarify, my employer is self-insured but Cigna administers the plan. I'm not crystal clear on what this means tbh but that is what I was told.
posted by AFABulous at 9:03 AM on May 13, 2016

Here is exactly what the exclusion says in my employer's policy: "transsexual surgery including medical or psychological counseling and hormonal therapy in preparation for, or subsequent to, any such surgery."
posted by AFABulous at 9:32 AM on May 13, 2016

Obviously I hope you get good answers here but did you try calling the Transgender Law Center’s legal helpline that is referenced in your 3rd link? Presumably they'd have some expert advice on whether filing a discrimination complaint with HHS might help you.
posted by Wretch729 at 9:43 AM on May 13, 2016 [1 favorite]

Also, call your insurer. Since these regs were just distributed, they may be in the process of changing their policy.
posted by roomthreeseventeen at 9:55 AM on May 13, 2016 [1 favorite]

The word on trans Twitter this morning has been that the principle is going to be "If a procedure is covered for cis people, it must be covered for trans people too." Meaning HRT and mastectomy must be covered, but FFS and non-orchi bottom surgery can still be excluded. But I've yet to see a non–twitter-rando source weigh in on this.
posted by nebulawindphone at 9:59 AM on May 13, 2016

My mother worked for health insurance companies for many years. When I asked her about this, she said that self-insured companies are like Hobby Lobby, so they get to make their own rules for what kinds of procedures they will cover. I think that is why Hobby Lobby went all the way up in the courts over not having to cover birth control. No one likes having their company compared to Hobby Lobby, but I'm thinking your desired surgery probably falls under the same situation. (For now.)
posted by jillithd at 11:07 AM on May 13, 2016

From roomthreeseventeen's link:
The regulation will apply to the vast majority of health insurance plans, including all plans sold on the state and federal exchanges, as well as any plan sold by a company with a federal contract or that is receiving federal funds. Some private plans that do not receive any type of federal funds may not be covered....

...Insurance plans may be given until 2017, depending on when their plan year starts, to make updates to plan documents that explain which health services are included and excluded. To learn how to file a complaint, and hear about other options, visit NCTE’s Know Your Rights resource on Health Care.
The issue is going to be whether you can force your insurance company to cover it, not whether you can force a healthcare provider to accept your insurance for the procedures. Talking to Cigna is probably your best bet to see if this law applies, though I would assume it's going to be a while before their lawyers figure that out.
posted by lazuli at 1:59 PM on May 13, 2016

From TLC: New ACA rule bans anti-trans discrimination in health care! What does this mean for you?

This applies to:
"Most types of health insurance and coverage, including Medicaid, Medicare, AIDS Drug Assistance Programs (ADAP), and individual insurance plans purchased through a state or federal health exchange. The rule also applies to insurance plans purchased directly through an insurance carrier or that is an employer-sponsored health insurance plan, when any part of the insurance carrier receives federal financial assistance. For example, since Aetna sells insurance plans through state health exchanges, it receives federal financial assistance in the form of premium subsidies. This means that discrimination is prohibited in any other insurance product that Aetna sells."
"In insurance: The denial or limitation of health care coverage for specific health services related to gender transition if the denial, limitation, or restriction results in discrimination against a transgender person. The rule states that it is unlawful for an insurance carrier to “have or implement a categorical coverage exclusion or limitation for all health services related to gender transition” (p. 354) when the insurer falls under one of the categories above. This means that blanket exclusions for transition-related care, which have been banned in 14 states and DC so far, are now unlawful nationwide in private insurance as well as Medicaid programs. This provision also applies to self-funded employer plans when the employer primarily provides health services (e.g, hospitals, clinics, skilled nursing facilities).
While banning the exclusion is not the same as requiring affirmative coverage, it does mean that if an insurance plan provides coverage for a treatment for a non-transgender person, they cannot then deny it for a transgender person on the basis of their transgender status. This is the same rationale that has been applied in the 15 jurisdictions that have implemented non-discrimination in health insurance so far, which have opened the door to many transgender people to access life-saving care for the first time, including hormone therapy and certain surgeries.

If a covered health plan currently has exclusions, it has until the first day of the first plan year beginning January 1, 2017 to remove the exclusion."
posted by gingerbeer at 7:05 PM on May 13, 2016

You should also check your state rules because they are much broader. In Washington state, for example, an insurer has to cover "corresponding therapies" for people undergoing gender reassignment surgery because to not do so constitutes discrimination. It's complex but the best example is this: If an insurance company covers breast augmentation for a woman who's undergone chemotherapy, they cannot then deny breast augmentation to a man simply because he's transitioning. That's not to say they won't have other reasons for denial or step therapy requirements but that's the basic gist of the rule.
posted by nubianinthedesert at 2:31 PM on May 17, 2016

Update from my HR department:
[Company Name] has every intention of complying with the nondiscrimination requirements of the health reform law as they apply to all covered participants, regardless of gender. Since the final HHS regulations impact the design of the [Company] plan, HHS has provided that they are effective as of January 1, 2017, and we will work with our insurer and consultants on any changes that will be required to be implemented with respect to the plan in 2017. HHS has confirmed that neither Section 1557 of the ACA nor the final regulations mandate the coverage of any specific benefit or service, but require that the plan provide benefits to all participants under the same terms, without regard to gender, gender identity, or gender stereotypes. While the plan may no longer apply a blanket exclusion after 2016 to charges associated with gender reassignment, the plan may apply the same general coverage rules (e.g., medical necessity) to claims submitted under the plan for benefits related to gender reassignment and related services.
I disagree that this does not take effect until Jan 1, but I am going to do some more research. In the meantime, I have scheduled a surgery consultation for next month.
posted by AFABulous at 12:46 PM on June 13, 2016

I called my insurer, which has a trans care exclusion policy. Their response was that as I am a state employee, and the state insurance plans are self-funded, the Federal ruling does not apply. Bleurrrgh, Wisconsin.
posted by DrMew at 4:56 PM on June 15, 2016

JFC, I'm sorry.
posted by AFABulous at 10:09 AM on June 16, 2016

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