The Wait for Promised Nondiscrimination Under the Affordable Care Act

Section 1557 of the Affordable Care Act, codified at 42 USC 18116, prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in “any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under” the Affordable Care Act (ACA).  This means covered health programs and activities should include Medicare, Medicaid, insurance for Federal employees (administered by the Office of Personnel Management), insurance through the exchanges (which are established under the ACA), and insurance through employers (which receive Federal tax subsidies through the exclusion of premiums from taxation; this is admittedly a stretch, but one I think is justified).  Which is to say, largely the entire universe of health insurance.  Even if employer-based health insurance is excluded, the set of covered programs is still quite broad.

The Department of Justice (after losing in litigation on the question, Macy v. Holder) has determined that discrimination on the basis of sex includes discrimination on the basis of gender identity, as was widely reported in December.

This raises the question: why is it still legal for covered programs to discriminate on the basis of gender identity by excluding coverage for transition-related care (that is to say, care related to one’s gender identity)?

The answer, sadly, is that it is nominally legal for insurers to exclude coverage because the Obama Administration told them so. In an undated “Q&A” published in 2012 by the Department of Health and Human Services (HHS) likely triggered by the EEOC decision in Macy v. Holder, HHS states that discrimination on the basis of “sex stereotypes” is unlawful discrimination, before going on to state: “Does this mean that transition related surgery is required to be covered by health insurers? No.”

With one word, the Obama Administration signed off on widespread anti-trans discrimination in covered health programs.

Perhaps recognizing that its analysis was weak, in 2013 HHS rescinded the Q&A and submitted a request for comments.  Comments were plentiful, including many LGBT organizations advocating on behalf of transgender people affected by the rampant discrimination in access to healthcare. HHS promised a new rule, but 2014 came and went without new action.  Finally, on April 29, 2015, HHS finally sent the proposed rule to the White House for review prior to publication.  There it currently sits; the most recent estimate of publication is that it will be published this month, in time for Pride.

The original HHS analysis was shoddy; a fair reading of the statute compels the interpretation that it is illegal under 42 USC 18116 to discriminate against transition-related care.  However, there’s not yet any court presented with the question, and LGBT organizations are understandably loathe to bring a case while the Federal government continues to discriminate against its own employees.  HHS’s last word on the topic was one word authorizing discrimination.

So we wait, and hope for better news.

Is OPM Requiring Coverage for Transition-Related Care under FEHB in Plan Year 2016?

UPDATE:  Reporting by BuzzFeed News indicates that OPM has decided to wait and see what insurance plans propose before deciding whether or not to permit plans to maintain the general exclusion.  Mara Keisling of the National Center for Transgender Equality responded:

“It’s not OK for an employer to say to insurance companies, ‘We don’t care if you discriminate against our employees,’” Keisling told BuzzFeed News. “It is just straight-up discrimination, and they can fix it any time they want.”

On March 13, 2015, the U.S. Office of Personnel Management (OPM) Healthcare and Insurance Division issued Federal Employee Health Benefits (FEHB) Program Carrier Letter No. 2015-02, its “annual call for benefit and rate proposals from FEHB Program carriers.”  The letter establishes what OPM expects for FEHB Program participants in contracting with the Federal government to provide health insurance to Federal employees.  In the call letter, OPM states:

OPM strongly encourages plans to reassess their benefit offerings as the needs of our population evolve.  In recent years, FEHB has welcomed young adults up to the age of 26 and same sex spouses as covered family members.  To further ensure that members can access appropriate care, we provide the following guidance:
…
Transgender Services – In June 2014, OPM recognized the evolving professional consensus that treatment may be medically necessary for gender dysphoria, and removed the FEHB requirement to exclude services, drugs, or supplies directly related to transition. Due to the short timeframe for network development and benefit design, OPM permitted plans to retain the general exclusion of these services for the 2015 plan year. For 2016, plans may propose services for members with gender dysphoria as they do for all other medical conditions. Plans offering surgical services must include details of preauthorization or case management requirements to facilitate referrals to qualified providers of this specialized care.

Emphasis added.  Given the context of a call letter (essentially a request for contract proposals from Federal contractors), this language may mean that OPM will no longer accept contract proposals which categorically “services, drugs, or supplies related to sex transformation,” as it accepted in years past.  This interpretation is bolstered by the publication on March 17, 2015 of FEHB Program Carrier Letter No. 2015-03(a), “2016 Technical Guidance and Instructions for Preparing HMO Benefit and Service Area Proposals.”  Again related to expanding access to care in the section labeled “Call Letter Initiatives,” the guidance states:

Transgender Services:  Beginning with 2016 brochures, Plans should describe their covered benefits for gender transition along with any excluded services, and list any applicable prior authorization requirements or age limits.

While this is weaker than the commanding language usually used in Federal regulations, it is important to remember the context that OPM is technically soliciting contracts rather than writing rules, and thus does not need to use command words such as “shall” in place of “should.”  Update: in response to questions, the use of “along with any excluded services” does not necessarily imply that categorical exclusions are still permitted; it could reference exclusions such as excluding all self-injectable medication.

Given the above, it’s worth asking:  what is OPM’s policy on exclusions for transition-related care in plan year 2016?  When I reached out for comment from OPM’s Office of Diversity and Inclusion, I received an immediate response from the Director, Veronica Villalobos, indicating they were looking into my inquiry.

Petition to Dept. of Education – Formal Interpretation of Title IX to Protect Trans and Non-Binary Students

Given the rash of anti-trans legislation and school board actions in recent months, the Department of Education’s January 7, 2015 letter on trans students and restroom access is proving insufficient to encourage compliance with Federal law on this point, which is that:

The Department’s Title IX regulations permit schools to provide sex-segregated restrooms, locker rooms, shower facilities, housing, athletic teams, and single-sex classes under certain circumstances. When a school elects to separate or treat students differently on the basis of sex in those situations, a school generally must treat transgender students consistent with their gender identity. OCR also encourages schools to offer the use of gender-neutral, individual-user facilities to any student who does not want to use shared sex-segregated facilities.

As such, today I filed a formal Petition for Interpretation under the Administrative Procedure Act with the Department of Education’s Office of Civil Rights.  The Petition does not call for a new interpretation of Title IX, but rather asks the Department of Education to reissue its existing interpretation in a more formal way to put the regulated community of school districts, as well as state legislatures, on notice of what is expected of them with respect to transgender and non-binary students.

Continue reading →

Op-Ed at the Advocate: Bathrooms as the Next LGBT Battleground

I recently wrote an op-ed for the Advocate, discussing the rash of anti-trans legislation focused on bathrooms.

With the Supreme Court poised to strike down bans on same-sex marriage nationwide this summer, focus is likely to shift to issues that have been sidelined in favor of fighting for marriage rights. If conservatives have anything to say about it, that focus will be on sex-segregated public facilities such as restrooms, locker rooms, and the like.

Supplemental Evidence for Petition for Reconsideration: Office of Personnel Management and Trans-Exclusionary Health Insurance Contracts

On August 25, 2014, I submitted a succinct Petition for Reconsideration to the Office of Personnel Management, asking that the agency reconsider its decision not to address discrimination on the basis of gender identity in Federal employee health benefits (FEHB) in its July 2014 rulemaking updating its nondiscrimination provisions.  This discrimination was recently discussed during a BuzzFeed interview with the President.

While I was expecting a response in the coming weeks, I was concerned that my original Petition did not provide sufficient evidentiary support for OPM to do the right thing and end these discriminatory insurance provisions.  As such, today I filed a supplement to the Petition, including statements on the issue from the University of California, San Francisco, Center of Excellence for Transgender Health, the World Professional Association for Transgender Health, Lambda Legal, the American Medical Association, the American Psychiatric Association, the American Psychological Association, the American Academy of Family Physicians, the American College of Nurse Midwives, the National Association of Social Workers, the National Commission on Correctional Health Care, and the American College of Obstetricians and Gynecologists.  The supplement also makes clear the basis for potential litigation on the issue, including the President’s executive orders on discrimination on the basis of sex and gender identity, recent Equal Employment Opportunity Commission decisions, Federal statutes prohibiting discrimination on the basis of sex in health care activities, and the Fourteenth Amendment.

OPM has not yet provided a revised estimate of when it will be responding to the Petition.

UPDATE: OPM has acknowledged receipt of the supplement, but has declined to provide a revised estimate of when it will respond.

OPM no timeline on response to Petition

Question for President Obama on Trans-Exclusionary Health Insurance for Federal Employees

UPDATE: The full transcript of the interview is now available.  Here’s the relevant exchange:

BuzzFeed News: I want to move to the big LGBT news of yesterday, but first we had a very specific question from a reader who worked for you, a federal lawyer who’s transgender named Emily Prince. Federal policy bars discrimination against transgender people under health care plans covered under the ACA, but federal worker plans largely don’t cover gender reassignment surgery. Should they?

Obama: You know, I haven’t looked at that policy. My general view is that transgender persons, just like gays and lesbians, are deserving of equal treatment under the law. And that’s a basic principle. As you mentioned, my sense is that the Supreme Court is about to make a shift, one that I welcome, which is to recognize that — having hit a critical mass of states that have recognized same-sex marriage — it doesn’t make sense for us to now have this patchwork system and that it’s time to recognize that, under the equal protection clause of the United States, same-sex couples should have the same rights as anybody else.

I’m grateful that BuzzFeed asked the question, and I’m disappointed but not surprised by the President’s decision to pay lip-service to transgender equality and then move to “more comfortable” ground of marriage equality. The Administration has been dodging this question for approximately eight months now.  Hopefully the OPM response to my Petition for Reconsideration will be more substantive.

BuzzFeed is interviewing President Obama on Tuesday and soliciting comments from their readership.  Since they’ve been so solid on trans issues, I’m hoping this question that I submitted (or one like it) makes it through:

Mr. President, while the Justice Department is arguing that discrimination against transgender people is illegal, why does your Administration still choose to discriminate against transgender Federal employees in our health insurance?

95% of plans say they won’t cover anything related to being trans, and your Administration decided again just last June to let them do that. When will transgender Federal employees be able to choose these plans, confident that our care will be covered?

Follow-up:
You said in the State of the Union you wanted to advocate for transgender people on the world stage. How can the U.S. be a credible voice on these issues while continuing to directly discriminate against trans people in employment, in military service, in health care?

In June 2014, the Office of Personnel Management announced it would “remove the requirement” for transition-related care to be excluded from health insurance coverage.  This left the exclusion at the whim of insurance companies.  Ever since, I have been pressing the Office of Personnel Management quite hard to ask – why were insurance companies permitted to continue discriminating against transgender Federal employees?

In July 2014, I held a meeting with the White House Office of Information and Regulatory Affairs to ask that question.  They had no answer then.  When the rule was published I submitted a Petition for Reconsideration, formally asking OPM to reconsider its decision to not address this ongoing discrimination on the basis of gender identity within the Federal government.  I demanded the records that OPM held concerning the choices plans were making as to covering or not covering transition-related care.  I continued to press OPM for answers during a November 2014 town hall with Federal employees, and they continued to have none.  The records request was finally handled, with only a brief period between the response and the end of Federal open season, when Federal employees became locked into their health plans for another year.

In December 2014, associated with the Department of Labor rulemaking regarding Federal contractors, I sent a letter to OPM (alongside DOL) asking about this continued discrimination against transgender Federal employees.  That letter has yet to receive a response.

Just two weeks ago, during a civil rights symposium at my employing agency, I sent OPM a question about trans-exclusionary health insurance for their open question-and-answer session on employment topics.  OPM declined to respond, stating that a response would be provided in writing at a future date.

To date, OPM has yet to respond to my August 2014 Petition for Reconsideration, though they have suggested a response will be forthcoming this month.  To date, OPM has not responded to my many questions circling around this key point:

Why were insurance companies allowed to continue to discriminate against transgender Federal employees by excluding coverage for transition-related care?

When will it stop?

Comment to NY Department of Health – Access to Care for Transgender Minors Through Medicaid

In mid-December the New York Department of Health published proposed regulations expanding Medicaid to include transition-related care (full regulatory text available here).  Unfortunately, the proposed rule excludes payment for coverage for hormone replacement therapy or gender-affirming surgeries for those under the age of 18.  While there are other issues (such as the extensive list of procedures not covered), I felt the denial of coverage for transgender teens was the most important element to address.

The PDF of the comment is available here; the full text of the comment is below.

Continue reading →

Unanswered Questions in Today’s Department of Labor Proposed Rule

Today’s Department of Labor proposed rule answers some, but not most, of the important questions left by the Department’s December regulation prohibiting discrimination by Federal contractors on the basis of sexual orientation and gender identity. Importantly, the proposed rule implements Macy v. Holder and makes clear that transgender employees must have access to restroom and other sex-segregated facilities consistent with their gender identity, and explicitly prohibits adverse actions against employees based on the fact of their transition from their sex designated at birth.

However, many questions remain. Perhaps the most important relates to employer-provided health insurance. While the proposed rule explicitly discusses several prohibited employment practices with respect to gender identity, the section concerning “other fringe benefits” such as health insurance is comparatively sparse. The proposed rule provides only that “it shall be an unlawful employment practice for a contractor to discriminate on the basis of sex with regard to fringe benefits.” The preamble is clear; discrimination on the basis of sex includes discrimination on the basis of gender identity. That would presumably mean that insurance contracts with clauses categorically excluding “services, drugs, or supplies related to sex transformation” would be unlawful employment practices under the proposed rule. The snag, of course, is that the above example language is present in over 95% of contracts for health insurance for Federal employees, including the single health insurance plan covering approximately 63% of Federal employees.

While it is difficult to imagine the Department of Labor declaring that the U.S. Office of Personnel Management is engaged in an unlawful employment practice, that is nonetheless the conclusion compelled by the proposed rule. It remains to be seen whether the Department of Labor will address this issue directly or will simply chose to quietly delay action in order to give OPM yet more time to come into compliance with its obligation to no longer discriminate on the basis of sex in its insurance contracts.

Questions for USOPM Director of Diversity and Inclusion Regarding Trans-Exclusionary Federal Insurance Policies

Today, the Department of Transportation Office of Civil Rights announced its 2015 DOT Civil Rights Virtual Symposium.  The Symposium includes the following program:

“Dear OPM: I have a problem, what do I do?”
Veronica Villalobos, Director, Office of Diversity and Inclusion, Office of Personnel Management
This “Dear OPM” session will feature a column style conversation addressing guidance on inclusion efforts in the Federal workplace such as transgender policies, religious accommodation, pregnancy, disability, among others.

I have attempted to correspond with Ms. Villalobos and her office several times in an effort to get an answer on the trans-exclusionary health insurance policies offered to Federal employees by OPM.  So far, OPM has steadfastly refused to say anything more.

As an attendee of the program I was given the opportunity to ask a question.

 

Veronica Villalobos
Director
Office of Diversity and Inclusion
U.S. Office of Personnel Management
veronica.villalobos@opm.gov

Dear Ms. Villalobos:

Before I ask my question, I’d like to thank your office for the 2011 guidance on gender identity issues that may arise in the workplace, particularly when an employee transitions at work. I know that the guidance has helped many trans people; I know it helped me when there were some individuals who didn’t understand that, as a woman, I would be using the women’s restroom at work. As the Department of Labor considers how to implement Executive Order 13672, prohibiting discrimination on the basis of sexual orientation and gender identity by Federal contractors, they should look to OPM’s leadership on the issue.

My question comes to that leadership, and where it has unfortunately been lacking. In June 2014, after many delays and a nontrivial amount of litigation, OPM finally made a minor update to its policy on gender identity with respect to health insurance. In FEHB Program Carrier Letter 2014-17, OPM claimed to “remove the requirement” that all FEHB brochures exclude “services, drugs, or supplies related to sex transformations” categorically, regardless of medical necessity. Instead, carriers would now have “one of two options” – covering this care without discriminating on the basis of gender identity, or maintaining the general exclusion and denying medically necessary care on the basis of gender identity.

If you’ll forgive a brief aside, it’s worth noting here that OPM later admitted in a FOIA response that there was no such requirement on record. One year prior, in plan year 2014, one health insurance carrier, Kaiser in California, offered trans-inclusive health insurance, despite the purported requirement, with full knowledge and consent of OPM. There was no requirement – there was a practice, a practice OPM’s carrier letter permitted to continue.

Digression aside: OPM’s minor update to its policy on gender identity and health insurance led to only a minor change. Of the 304 FEHB plans, 15 (or less than 5%) eliminated the discriminatory provision. Under current OPM policy, the other 289 health insurance carriers (including the single carrier insuring over 63% of Federal employees) may continue to exclude care solely because it is a “service, drug, or supply related to sex transformations.” That means that even if a service is covered, if it is related to a “sex transformation” (i.e. medical transition, described using grossly offensive language), a carrier may exclude it. Under FEHB regulations, OPM accepts legal responsibility for each of these health insurance plans.

The Department of Justice is filing briefs stating that discrimination on the basis of gender identity is discrimination on the basis of sex. Under the 2012 EEOC decision Macy v. Holder, such discrimination is illegal. Under Title VII, such discrimination is illegal. Under Executive Order 13672, such discrimination is illegal.

Here is my question:

Can we hope that the Office of Personnel Management will prohibit trans-exclusionary health insurance policies in plan year 2016?

Until then, why does the Office of Personnel Management continue to tolerate discrimination on the basis of gender identity within the express terms of the contracts it makes with health insurance plans?

When the Office of Personnel Management’s Office of Diversity and Inclusion updated its regulations on nondiscrimination provisions, why did it choose to ignore its FEHB contracts?

Why has your own office failed to respond to these issues when brought to your attention, such as the letter I sent your office on December 9 and January 15, or the work of any number of organizations advocating for transgender equality, or amidst a quiet but steady stream of litigation on this issue?

When will the Office of Personnel Management show leadership and ban trans-exclusionary health insurance policies, so that the Department of Labor and the Department of Health and Human Services can enforce the Affordable Care Act’s prohibition on discrimination on the basis of gender identity for all Americans?

Quite simply, the effort to ban health insurance contracts that discriminate on the basis of gender identity cannot succeed through Federal action until the Federal government ends its own discrimination against transgender Federal employees. Until your office acts, the Department of Labor and the Department of Health and Human Services are hamstrung in any efforts they may make to eliminate such discrimination – after all, the Federal government permits the discrimination for its own employees.

Sincerely,

— Emily T. Prince, Esq.