A Texas U.S. District Court Judge ordered the Department of Health and Human Services (HHS) not to enforce rules against discriminating against transgender health care services in health insurance policies. The order was issued on December 31, 2016 before the new nondiscrimination rules were set to go into effect. The nondiscrimination rules are part of Section 1557, the nondiscrimination provision of the Affordable Care Act (ACA). A lawsuit brought by The Becket Fund for Religious Liberty on behalf of Christian Medical & Dental Associations, Franciscan Alliance, Inc., and Specialty Physicians of Illinois, LLC complained that the new nondiscrimination rules would force their clients to violate their deeply held religious beliefs.
Nondiscrimination Of Transgender And Pregnancy Rights
Under the ACA, HHS sets rules health plans must follow in order to be determined minimum essential coverage for their members to avoid the Shared Responsibility Payment (aka individual mandate). The Section 1557 final rule applies to any health program or activity, any part of which receives funding from the Department of Health and Human Services (HHS), such as hospitals that accept Medicare or doctors who receive Medicaid payments; the Health Insurance Marketplaces and issuers that participate in those Marketplaces; and any health program that HHS itself administers. Health plan members who feel they have been discriminated against in one of the categories included in Section 1557 can file a complaint. Discrimination on the basis of gender identity is one of the categories.
On the HHS website describing Section 1557, the department outlined how health plans and providers could not discriminate against people seeking services for gender transition.
Under the final rule, categorical coverage exclusions or limitations for all health services related to gender transition are discriminatory. Also, a covered entity cannot deny or limit coverage, deny or limit a claim, or impose additional cost sharing or other limitations or restrictions, for any specific health services related to gender transition if such denial, limitation or restriction results in discrimination against a transgender individual.
After the court order was handed down, HHS updated their website to include the following message.
General Questions about Section 1557
On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al v. Burwell, enjoining the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. Accordingly, HHS’ Office for Civil Rights (HHS OCR) may not enforce these two provisions of the regulation implementing these same provisions, while the injunction remains in place. Consistent with the court’s order, HHS OCR will continue to enforce important protections against discrimination on the basis of race, color, national origin, age, or disability, as well as other sex discrimination provisions that are not impacted by the court’s order. Areas of sex discrimination that HHS OCR may continue to enforce include: harassment based on sex and allegations related to sex stereotyping that do not involve gender identity claims, as well as other forms of discrimination based on sex other than gender identity or termination of pregnancy.
On January 19th, UnitedHealthcare issued a statement that their health plans would continue to follow rules regarding transgender health care services.
ACA Nondiscrimination Nationwide Court Injunction Issued
January 19, 2017
The U.S. District Court of North Texas issued a preliminary injunction that bans the U.S. Department of Health and Human Services (HHS) from enforcing requirements in its Affordable Care Act (ACA) Nondiscrimination Section 1557 regulations prohibiting discrimination on the basis of gender identity. This injunction applies nationwide.
UnitedHealthcare is not changing its coverage of treatment for gender dysphoria as a result of the preliminary injunction issued on Dec. 31, 2016, by the U.S. District Court in Texas. UnitedHealthcare Employer & Individual coverage of treatment for gender dysphoria will remain consistent with the members’ applicable benefit plan language.
UnitedHealthcare standard fully insured coverage for 2017 includes services for treatment of gender dysphoria, including behavioral health, pharmacy, and certain surgical services when clinical criteria for eligibility are met.
Coverage Of Transgender Health Care Services Expanding
Milliman, one of the largest providers of actuarial services to health insurance companies, published a report on the expansion of transgender coverage in health plans in the U.S. Titled, Transgender healthcare coverage: Prevalence, recent trends, and considerations for payers, it stated that 10 jurisdictions, including the District of Columbia, prohibited health plans from using blanket exclusions for transgender health care services. There were eight states that mandated transgender coverage for state employees. There were twelve states that included transgender coverage for their Medicaid members. The Milliman research singled out California’s Insurance Gender Nondiscrimination Act that prohibits plans from limiting health care service based on gender identity.
For transgender individuals living in states that have passed gender nondiscrimination laws, the recent court order against HHS enforcing transgender transition discrimination may have little impact. However, there is always the potential for errors on the part of the health plan in authorizing some transgender services. In one case, Aetna denied authorization for gender reassignment surgery labeling it cosmetic. The Aetna health plan member filed a Section 1557 complaint. A synopsis of the complaint and outcome were posted on the HHS website.
OCR Enforcement under Section 1557 of the Affordable Care Act Sex Discrimination Cases
A transgender individual alleged that Aetna discriminated against him by denying him coverage for gender reassignment surgery and making inappropriate comments. Initially, Aetna told the complainant that this surgery was not covered under the terms of the complainant’s health plan. However, during OCR’s investigation, Aetna recognized that its original denial had inappropriately been based on an exclusion for cosmetic procedures. Aetna stated that requests for gender reassignment surgery are considered based on medical necessity and are covered under the complainant’s plan in accordance with Aetna’s policies. As a result, Aetna informed OCR that it will cover the complainant’s gender reassignment surgery and is incorporating this surgery as a covered benefit in all of its group plans. In addition, Aetna is retraining its customer service representatives who respond to telephone calls to ensure that representatives respond to calls appropriately. https://www.hhs.gov/civil-rights/for-individuals/section-1557/ocr-enforcement-section-1557-aca-sex-discrimination/index.html
Once HHS forced Aetna to review the terms of the health plan and found that medically necessary gender reassignment surgery was covered, Aetna reversed their denial. But if HHS is prohibited from investigating such instances of valid complaints against the health plan’s own terms and conditions, consumers lose a valuable tool for forcing health insurance companies to live up to the health plan contract.
Lawsuit Against Transgender and Pregnancy Rights
The first five paragraphs of the lawsuit Franciscan-Alliance v Burwell spell out the plaintiffs argument for preventing HHS from enforcing nondiscrimination rules. The complaint also sought to remove termination of a pregnancy from discrimination enforcement.
INTRODUCTION AND NATURE OF THE ACTION
This lawsuit challenges a new Regulation (“Regulation” or “Rule”) issued by the Department of Health and Human Services (“HHS”) that seeks to override the medical judgment of healthcare professionals across the country. On pain of significant financial liability, the Regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex—including the sex of children. Under the new Regulation, a doctor must perform these procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm. Thus, the Regulation represents a radical invasion of the federal bureaucracy into a doctor’s medical judgment.
HHS attempts to impose these dramatic new requirements by redefining a single word used in the Affordable Care Act: “sex.” For decades, across multiple federal statutes, Congress has consistently used the term “sex” to refer to an individual’s status as male or female, as determined by a person’s biological sex at birth. But in the Regulation, HHS redefines “sex” to include “an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female, and which may be different from an individual’s sex assigned at birth.” 45 C.F.R. § 92.4. Thus, with a single stroke of the pen, HHS has created a massive new liability for thousands of healthcare professionals unless they cast aside their medical judgment and perform controversial and even harmful medical transition procedures. And HHS has done this despite the fact that Congress has repeatedly rejected similar attempts to redefine “sex” through legislation, and federal courts have repeatedly rejected attempts to accomplish the same goal through litigation.
The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs. Plaintiffs include the Christian Medical & Dental Associations, which include over 17,000 healthcare professionals, and Franciscan Alliance, a network of religious hospitals founded by the Sisters of St. Francis of Perpetual Adoration. These religious organizations are deeply committed to the dignity of every human person, and their doctors care for everyone with joy and compassion. They eagerly provide comprehensive care to society’s most vulnerable populations, but their religious beliefs will not allow them to perform medical transition procedures that can be deeply harmful to their patients. Tragically, the Regulation would force them to violate those religious beliefs and perform harmful medical transition procedures or else suffer massive financial liability.
The Regulation also undermines the longstanding sovereign power of the States to regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights. Under this Rule, States are now required to force all healthcare professionals at state-run facilities to participate in medical transition procedures (including hormone therapy, plastic surgery, hysterectomies, and gender reassignment surgery), and to cover those procedures in the States’ health insurance plans, even if a doctor believes such procedures are harmful to the patient. The Rule exposes the States to litigation by its employees and patients, despite the fact that neither Congress nor the States expressed any intent to waive the States’ sovereign immunity in this area. And the Rule threatens to strip the States of billions of dollars in federal healthcare funding—over $42.4 billion a year for Texas alone—jeopardizing the availability of healthcare for the nation’s most vulnerable citizens.
Ultimately, this case boils down to a very simple question of statutory interpretation: Can HHS redefine the term “sex” to thwart decades of settled precedent and impose massive new obligations on healthcare professionals and sovereign States? The answer is “no,” and the new Regulation must be set aside as a violation of the Administrative Procedure Act and multiple other federal laws and constitutional provisions.
The complaint also included a section that argued that rules discriminating against the termination of a pregnancy should be nullified.
This conflict with religious or otherwise conscientious employers extends beyond treatment surrounding gender dysphoria, because some required procedures (such as elective hysterectomies) result in sterilization, and the new Rule also extends to “termination of pregnancy.” 45 C.F.R. § 92.4. Although HHS states that laws protecting religious objections to abortion (or “termination of pregnancy”) will apply, HHS recently approved California forcing all insurers to include abortion coverage, even for objecting religious institutions. And HHS could have included, but explicitly chose to exclude, a clear regulatory carve-out for services related to abortion that parallels the carve-out in Title IX.
Judge Reed O’Conner, United States District Judge granted motion for preliminary injunction against HHS enforcing the nondiscrimination rules.
For the foregoing reasons, the Court finds that Plaintiffs’ motions for preliminary injunction (ECF Nos. 22, 24) should be and are hereby GRANTED. See Fed. R. Civ. P. 65. Defendants are hereby ENJOINED from enforcing the Rule’s prohibition against discrimination on the basis of gender identity or termination of pregnancy.
SO ORDERED on this 31st day of December, 2016.
Challenging The Ruling
There will be more litigation on this issue. The ACLU filed a Motion For Ruling On Intervention And Stay Of Preliminary Injunction Pending Appeal on January 9th, 2017. Essentially, they want the judge to lift his order while other parties appeal his initial ruling. Whereas the Obama administration would have argued for the stay and appealed the court ruling, there is no indication that the new Trump administration will attempt to defend the HHS nondiscrimination rules.
How To Proceed
If you are thinking of sex reassignment surgery as part of your transition, you need to get the Evidence of Coverage (EOC) or Member Agreement (MA) for the health plan. Some of the EOCs and MAs will actually include text that they cover transgender health care services. If you are denied authorization for the SRS, but the EOC or MA states coverage, you can most likely contest the denial since the health plan contract states it is a covered benefit.
If the EOC or MA doesn’t mentioned SRS, you need to see if your state has gender nondiscrimination laws. You might be able to appeal any denial based on your state’s law of nondiscrimination.
If you live in a state that has not passed gender nondiscrimination laws, as of early 2017, the federal government won’t enforce any rules from Section 1557 pertaining to certain discriminatory actions. However, if you feel you are a victim of discrimination from a doctor, hospital, or health plan, always file a complaint. There may be other grounds for enforcing Section 1557 nondiscrimination rules. It’s possible that transgender nondiscrimination will be put back into effect in the future, so at least if you have filed a complaint, it will be in the system.
Franciscan-Alliance v Burwell Complaint
|Date:||January 26, 2017|
Brief Supporting Complaint
|Date:||January 26, 2017|
Court Order Injunction Of Nondiscrimination Rules
|Date:||January 26, 2017|
ACLU Motion To Stay Franciscan-Alliance v Burwell Court Order
|Date:||January 26, 2017|
Milliman Report On Transgender Coverage
|Date:||January 26, 2017|
California DMHC Letter Gender Nondiscrimination Requirements
|Date:||January 26, 2017|