New Proposed Federal Rule Regarding Insurance Coverage of Transition-Related Health Care

As of last month, transgender individuals are closer than ever to having their transition related healthcare covered by their insurance. On September 3^rd, 2015, the Department of Health and Human Services (HHS) released proposed rules that would mandate the protection of transgender people under federal law, and make illegal the common practice of categorically excluding transition-related care from insurance coverage. The rule, entitled “Nondiscrimination in Health Programs and Activities," seeks to include discrimination against transgender individuals under the umbrella of sex discrimination prohibited in Section 1557 of the Affordable Care Act.

The press release from HHS (available at http://www.hhs.gov/ocr/civilrights/understanding/section1557/nprmpr.html) states that the proposed rule applies to “health insurance marketplaces, any health program that HHS itself administers, and any health program or activity, any part of which receives funding from HHS, such as hospitals that accept Medicare patients or doctors who treat Medicaid patients…[and] extends these nondiscrimination protections to individuals enrolled in plans offered by issuers participating in the Health Insurance Marketplace.”

Transgender individuals are often faced with the near-impossible wall of a categorical exclusion against transition-related care. With the prohibition of such exclusions, lawyers and advocates will face fewer obstacles when helping their clients navigate health insurance procedures and appeals in order to obtain necessary medical care. “The proposed HHS rule is an enormous milestone for all transgender and gender nonconforming people in the U.S. access to safe, respectful health care [as] a basic human right, and this policy makes a huge advance toward equity in health care for transgender people,” said Kris Hayashi, executive director of the Transgender Law Center. The National Center for Transgender Equality said the regulation “could result in one of the biggest wins of this administration."

However, the practical implications of the new rule remain unclear. Though insurance companies will not be able to categorically exclude transition related care, the possibility always exists that those companies will find more creative ways to limit coverage while still maintaining compliance with the rule. We reached out to AJ Pearlman, the Chief of Staff and Senior Advisor for the Office of Civil Rights at HHS to address how the proposed rule will be implemented and enforced, and whether there would be real-life consequences for insurers who continued to exclude transition-related care. AJ stated that though the proposed rule will become effective 60 days after publication of the final rule in the Federal Register, “HHS does not require issuers to submit their policies or plans to OCR for routine review.” Thus it will be up to individual policy holders to file complaints about their plans in order for HHS to assess compliance.

Full text of the proposed rule is available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-22043.pdf and is open for public comment until November 9, 2015.