How should I ask HR to cover my transgender surgery?
January 2, 2017 7:20 AM   Subscribe

My company is self-insured and thus can write their own insurance policy without being subject to many regulations. For whatever reason, they decided to exclude transgender health services. I did not find this out until last week. I have surgery scheduled in three weeks. I am going to pay for it myself but I want to ask HR if they'll reconsider not being [swear words redacted].

Before you say "they can't discriminate like that!" yes, yes, they can. I have been through this question with other trans people, and with people experienced with the insurance industry. [My previous question, and I have talked to dozens of people since then.] They are self-insured and Aetna only administers the plan, they have no say in what actually goes into it. They couldn't say "no healthcare for Black people or Jews!" but trans people are not a protected class in either my state nor the state where the company is headquartered.

All that said, it wouldn't hurt to throw a Hail Mary pass and see what happens. HR is offsite and I have never met them and never will, so I can't go into someone's office and give them a puppy-dog look. I think I know the right person to email or call but I don't know exactly how to approach this. I'd prefer to email so this is all in writing.

I came out a year ago and HR has seemed baffled by trans people. I had to send them PDFs like "what to do when your employee comes out." But even so, they still didn't back me up when someone complained I was using the men's room (this got sorted, but WTF). I only bring it up because there are probably notes in my file since it got complicated with my boss.

I'm also likely to be laid off soon - the company has been cutting other people, my job duties have been decreasing for months, and now my boss is upset with me over the bathroom thing (yes, really). It's also a really odd coincidence that after a year, someone complained about me using the men's room only a week after I asked for two weeks off for the surgery. Maybe that's a different question, but the point is that I'm not on anyone's good side right now.

OK, back to the surgery. It is definitely trans related, the surgeon won't code it as something else, and that would look pretty suspicious at this point anyway. It's $10,000 out of pocket; I'm not sure what she would charge insurance. Do I have any hope of convincing HR to cover it? Retroactively, since it's in 3 weeks?
posted by AFABulous to Work & Money (22 answers total) 2 users marked this as a favorite
 
I think you have little to no hope of getting HR to agree to anything. The absolute best I can imagine you can hope for is that they change the plan for the next plan year. However, I do think you should ask the surgeon to send Aetna the request for prior authorisation and see what happens. Appeal if they refuse, just as a matter of principle. However, you'll likely run out of time on the appeal and end up paying out of pocket. (And they won't pay retroactively if you win the appeal, I don't think--they'll say you should have postponed surgery. With a surgery date set, you should get some sort of expedited appeals process.)

There are a lot of plans lying around with exclusions (I just got a new (fully-insured, not self-funded) plan that has one, and exclusions are prohibited at the state level where I am and have been for a few years--still waiting to see how that plays out) that may or may not be being enforced. If you read the full plan document, it'll say things like "if this contradicts federal regulation, the federal government wins". I believe that the ACA can still apply to self-funded plans, if they've taken federal money, but I don't understand how likely that is (or what federal money they'd be taking). Anyway, if Section 1557 applies to your plan, Aetna may be taking matters into their own hands. You may just want to phone Aetna and ask. Unfortunately, everyone's least favorite federal judge has tied HHS's hands when it comes to enforcing 1557, so you don't have much recourse if you could establish it applies to your plan and the exclusion is still there. Self-funded plans are governed by ERISA (always? usually?), so you could, in principle, complain to the Department of Labor, but don't expect the Trump administration to lift a finger--they'll have gutted all the Civil Rights offices that these complaints go to. (And, unfortunately, we all may be best served by no one sticking their neck out and risking an adverse ruling.)

If you don't know this already, their response you posted in the last thread weaseling about medical necessity implying they'd still refuse coverage is bullshit. Medical necessity is well-established and it'd be Aetna's decision as the plan administrator, not their's.
posted by hoyland at 7:50 AM on January 2, 2017 [3 favorites]


However, I do think you should ask the surgeon to send Aetna the request for prior authorisation and see what happens. Appeal if they refuse, just as a matter of principle. However, you'll likely run out of time on the appeal and end up paying out of pocket.

Yes, went this route already. Aetna says they have no appeal process because the company is self-insured, and my only option is to go through HR.

Anyway, if Section 1557 applies to your plan, Aetna may be taking matters into their own hands.

It doesn't, that's one of the things I've thoroughly discussed with others. A friend who is a ACA healthcare navigator suggested that I could get an ACA plan (since they are not supposed to have trans exclusions) but this surgeon is not in network with any of them, and the deductibles for out-of-network is more than what the surgery cost.

(And, unfortunately, we all may be best served by no one sticking their neck out and risking an adverse ruling.)

This is a good point and one I had not thought of.
posted by AFABulous at 8:03 AM on January 2, 2017


[Section 1557] doesn't, that's one of the things I've thoroughly discussed with others.

From their earlier response, it seems like HR thinks it applies. It might be worth emailing them and being like "So, it's January 2, what the deal?" But, realistically, I don't think you're going to win this one and you may just be hastening your demise at this job. The question is whether you care about that.
posted by hoyland at 8:17 AM on January 2, 2017


I would try to negotiate directly with the surgeon to get the cost down to what insurance would have paid if they were covering it. This seems more likely to save you money than trying to work with the jerks in HR.

A lot of doctors bill patients more than they accept from insurance companies for the same procedure. It seems like one reason this happens is because the insurance companies like to get a good deal, so the doctors have to bill more so they will still get paid enough after the insurance company only reimburses them 70% or whatever.

So what you definitely do not want is to be stuck paying the amount your doctor would have billed insurance, not the amount they would have paid. I have had really good luck negotiating the price down when working with out-of-network doctors just by mentioning that I will be paying out of pocket because insurance is not going to cover the visit. Sometimes the doctors themselves even bring it up. A nice won't want to give you a terrible deal.
posted by insoluble uncertainty at 9:33 AM on January 2, 2017 [3 favorites]


IMHO, this sounds like a sucky place to work so I'd say you have little to lose. Spiff up your resume and send the following:
Dear HR,

I have recently been informed that our plan with Aetna will not cover a medically necessary surgery that I have scheduled for the end of this month. I have read through the employee manual, but I have not found any guidance regarding our company's procedure for requesting coverage in situations such as this, can you direct me?

Sincerely, AFAB
Their response will probably be something like:
Dear AFABulous,
The coverage included in our plan is detailed in the plan terms document that you received during the open enrollment period. Here is a weblink.
Your next response:
Dear HR,
Thank you for the link to the terms document, I note that the plan specifically excludes [official name of surgery type/classification]. This is disappointing to me, because though I understand that this plan is self-funded, ACA standard plans clearly require coverage for [surgery], and I would expect it to be included, especially since [Company] has been aware of my status as a transgender employee since [date when HR first notified].

Please let me know whom at [Company] is the authority for health plan related choices, as I would like to understand how this decision was made.

I have the honour to be your obedient servant, A dot FAB.
From there, I'd play it by ear. It's a longshot that they'll actually cover you, of course, but at least you've asked. And this is likely to ruffle some feathers, so make sure you're being the best possible employee (as far as actual job duties) so they have no work quality related reasons to lay you off. If they want to lay off a trans employee for asking for trans related care, that's their look-out.
posted by sparklemotion at 9:50 AM on January 2, 2017 [14 favorites]


I would try to negotiate directly with the surgeon to get the cost down to what insurance would have paid if they were covering it. This seems more likely to save you money than trying to work with the jerks in HR.

A lot of doctors bill patients more than they accept from insurance companies for the same procedure. It seems like one reason this happens is because the insurance companies like to get a good deal, so the doctors have to bill more so they will still get paid enough after the insurance company only reimburses them 70% or whatever.


For reference, while insurance coverage for transition-related care has improved, paying for this surgery out of pocket remains incredibly common and the prices you're quoted factor in that you're paying cash. $10k is basically the going cash rate these days, obviously with a bit of variation by surgeon. You'd expect the amount billed to insurance to be something like $20-25k, if not more, and for insurance to pay $10-15k (with the caveat that these numbers come are a few years old and I can't remember if they included the surgeon's fee).
posted by hoyland at 1:44 PM on January 2, 2017 [1 favorite]


Note that a federal injunction stopped application of Sec. 1557 to transgender surgery for now. (Thanks, Texas!).

http://healthaffairs.org/blog/2017/01/02/aca-pregnancy-termination-gender-identity-protections-blocked-wellness-program-incentives-survive/

If you live in a state that requires coverage of the corresponding therapies such as HRT, mammography, you should still be able to get that covered under state law. I only know for sure that Washington and Oregon require that coverage, even without 1557.
posted by nubianinthedesert at 4:08 PM on January 2, 2017


Wanted to add that I'm being facetious about Texas. This law was a day away from implementation when this injunction went into effect ... at great cost to many, I'm sure. Good luck to you.
posted by nubianinthedesert at 4:21 PM on January 2, 2017


Another thing to consider is this: even if HR does change their minds, they may not be able to enact this change until your company's current plan year expires (which does not always line up with the calendar year). Even though they are self-funded, it's likely that Aetna requires them to set the terms of the coverage in the contract and not deviate from it until renewal.
posted by rhiannonstone at 4:21 PM on January 2, 2017 [1 favorite]


If you think there is any chance that you're going to get this covered somehow, I recommend you/your surgeon start the pre-approval ball rolling with Aetna, like, yesterday. They lost (or "lost") my pre-approval paperwork so many times in the months(!) prior to my surgery that it almost circled around from infuriating to comical again. Almost.
posted by dorque at 4:54 PM on January 2, 2017


IANYL. The only other route I could suggest would be looking into state/federal anti discrimination law regarding employment. While self funded plans are not subject to state law, your employer is, and they cannot discriminate in the provision of benefits related to employment. I have heard of attorneys using federal eeoc complaints to successfully negotiate coverage with self insured plans. On a federal level the eeoc and some circuits recognize gender identity as included in sex as a protected class. Depending on your state you can dual file with the eeoc and your state or local civil rights office. Your employer might not be thrilled, but you would also have the benefit of being legally protected from retaliation for filing a complaint. Competent HR and in house counsel should be well aware of that.

I'd be happy to discuss further or try to point you to resources, feel free to memail me.
posted by gnar_gnar at 7:03 PM on January 2, 2017 [1 favorite]


Discrimination issues aside, ERISA doesn't necessarily prevent your employer from amending their plan mid-year to cover any particular service, but ERISA does require the employer to administer the plan in accordance with the current plan document (which sounds like it excludes surgery related to gender transition). So, your HR department's hands are likely tied, with a plan amendment being an unlikely option (usually takes a board resolution/executive buy-in, etc.).

One option that I've seen in my line of work is where an employer wants to help but is constrained by ERISA/plan terms/insurance company terms is a lump sum of taxable, unconstrained cash. So, while you could technically use the money to buy a car, the idea is that they know their plan is shitty and want to help, but have to do it outside the plan itself for ERISA fiduciary and IRC purposes.

Feel free to email me.
posted by Pax at 6:10 AM on January 3, 2017 [1 favorite]


I should have said "with an immediate or in-time-for-your-surgery plan amendment being an unlikely option."
posted by Pax at 6:28 AM on January 3, 2017


Okay, a bunch of stuff has happened in the last two hours and it's up in the air because the people on the phone ("care coordinators") tell me there's an exclusion, but I finally got the actual SPD and it says that trans care IS covered
As provided in this Plan, payment is available for Medically Necessary hormone therapy and/or gender reassignment Surgery for the treatment of gender dysphoria.
Then again there's this on the first page
Enclosed you will find your new Benefit Plan as requested. Any self-funded plan with a stop-loss relationship must mirror the exclusions in the stop-loss contract within the corresponding plan document. If a contradiction between the stop-loss contract and the plan document exists, a gap in coverage may be created.

Based on the information we received, the following assumptions have been made in preparing your plan document:
 At the time of drafting, we had not received a copy of your stop-loss contract and therefore needed to make assumptions while preparing your document. These assumptions include our Meritain standard language.

If exclusions do not align after comparison of your current stop-loss contract and this drafted plan document, please do not execute the current plan document you have been provided and immediately contact your Implementation Manager (IM) or Client Relationship Manager (CRM).
idk what the hell that means. This was the plan that was given to me today, after asking for it for weeks, but they can just say OOPS NEVER MIND at any time?

They also told me that if 1. it is covered and 2. I don't get the pre-auth approved in time so 3. I self pay, if it is approved later, then I would be paid retroactively. I can't understand the language in the SPD or find any relevant parts, but does this sound like normal procedure?
posted by AFABulous at 10:24 AM on January 3, 2017 [1 favorite]


Note that a federal injunction stopped application of Sec. 1557 to transgender surgery for now. (Thanks, Texas!).

Not really. The HHS can't enforce the law. That doesn't mean it doesn't exist. You can still sue under that law. How far you'll get is left as an exercise for the reader.
posted by AFABulous at 10:28 AM on January 3, 2017


("care coordinators")

Who do these people work for? Your company? Meritain? Aetna? The hospital?

I think that, given the fact that you have an SPD (I assume "summary plan description") that says trans care is covered, you need to get someone to show you in writing where it says that your specific care is excluded. This could be in the "plan document" if it exists(most plans have a plan document that is crazy long, of which the SPD is a just a summary), or the "stop-loss contract" referenced in the SPD. That bit about the "do not execute" seems like it was written for the HR people at your firm, not for individual employees, so you shouldn't need to be the one to go through the nuts and bolts of the contract, BUT, apparently the people whose job it is the know these things are not helping.

Anyways, right now, I think your fight is with the insurance company, not necessarily your company. I know that they are trying to pass the buck: Aetna says they have no appeal process because the company is self-insured, and my only option is to go through HR. But the SPD is pretty clear and so I think it's on them to provide you with the details of the "exclusions." So contrary to my advice above (that assumed HR was the enemy), I'd start by:

1.) Trying to get the insurance company to provide you the documentation of the exclusion.
2.) If you can't get anything from the insurance company, email HR with:
Dear HR,
I am attempting to receive pre-approval for a medically necessary surgical procedure at the end of the month. The SPD for 2017 clearly states that "payment is available for Medically Necessary hormone therapy and/or gender reassignment Surgery for the treatment of gender dysphoria," however Meritain/Aetna has refused to approve the treatment.

[consider including details of the treatment, including documentation providing evidence of Medical Necessity]

Per Meritain/Aetna, there is no appeals process for self insured plans, and therefore I need to work on this through [Our Company] HR. Can you help me to figure out the next step here?
3.) If you do get something from the insurance company that lists the exclusion, then your fight is with HR, so I'd go with my original script.
posted by sparklemotion at 12:04 PM on January 3, 2017 [1 favorite]


Not sure what "SPD" stands for but it's a 98 page document. The thing they call "Summary" is about 5 pages and only has a few exclusions listed, nothing about trans stuff, which is why I've been bugging them constantly for the full document.

The "care coordinator" (I don't know who they work for) told me they can't give me anything in writing because there is a blanket exclusion so they can't file a claim. This was before my latest convo where I pointed out the specific language in the SPD and she's checking with her manager.

I'm just gonna go ahead and send your suggested email to HR so I'm operating on multiple fronts here. I will run this into the dirt out of principle. I'm likely getting laid off soon so IDGAF if I annoy them.
posted by AFABulous at 1:30 PM on January 3, 2017 [1 favorite]


SPD means summary plan description, is essentially your certificate of coverage/policy contract.
generally approx 100 pages. has actual enforceable language.

"summary"/ or "summary of benefits and coverage (SBC)" is often template with broad categories of coverage and vague descriptions, generally 2-5 pages. generally has no enforceable language.

A quick googling seems to indicate that the stop loss language is directed at your employer, not you.

I support you 100% in pushing this as hard as possible. you can probably file online complaints with your state's attorney general office right now, stating that your employer is not complying with your insurance policy by refusing to cover medically necessary care that is explicitly provided for under your policy. You have a contract with your employer for the provision of health insurance, they are not complying with that contract.

if there is any tool you can leverage, even if it doesn't seem likely, use it to put pressure on them.

Be loud, difficult and persistent. do not go away.
posted by gnar_gnar at 1:57 PM on January 3, 2017 [1 favorite]


Yeah, that language is not meant for participants, it's meant for the plan sponsor (your employer), it sounds like it's from the TPA (third party that just administers the plan, with varying degrees of decisionmaking power, depending on the how the plan is written).

If you are going to get the care either way, I would definitely recommend submitting the claim and fighting any denial (my advice would be different if you were depending on coverage in order to seek care), because one of the principles of ERISA (and contracts in general) is that an ambiguous document is construed against the drafter (your employer/employer's plan). If the SPD conflicts with the stop-loss contract and/or the enrollment materials and/or the master plan document and/or any TPA materials, and any one of them might be read to not exclude the care you are seeking, you might have a basis for appeal.
posted by Pax at 6:06 PM on January 3, 2017


Great news! I bothered the insurance company so many times that a manager called me after hours to confirm that the plan DOES cover transgender services and that my surgeon's office should call tomorrow to get the authorization rolling. She's put a flag on my file and given me her direct number in case I encounter any problems!
posted by AFABulous at 7:12 PM on January 3, 2017 [9 favorites]


That's fantastic! Way to go! And best of luck on the surgery.
posted by leahwrenn at 8:48 AM on January 6, 2017 [1 favorite]


More great news - I got the determination letter from the insurance company that the surgery is pre-certified and that the surgeon and hospital are in-network! The squeaky wheel gets the grease!
posted by AFABulous at 10:32 AM on January 10, 2017 [5 favorites]


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