Federal Funding of Transgender Transition Surgery in Play Again

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With the sweeping changes in health insurance wrought by the Affordable Care Act, commonly referred to as ObamaCare, the transgender community has made some considerable gains, though not quite enough yet.

While some jurisdictions such as California, Colorado, Oregon, Vermont and Washington DC have enacted regulations to eliminate transgender transition-related exclusions, for the rest of the country the status of transitional procedures is still very much up in the air.

Last month the Federal Department of Health and Human Services (HHS) announced that it is reconsidering its 1989 exclusion of gender confirmation surgeries and therapies for transgendered Medicare and Medicaid beneficiaries.

The decision was based in large part on a 1981 National Center for Health Care Technology report, which stated: “Because of the lack of well controlled, long-term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexuals, the treatment is considered experimental. Moreover, there is a high rate of serious complications for these surgical procedures. For these reasons, transsexual surgery is not covered.”

There have been a great deal of changes in the intervening years however, and both the American Medical Association and the American Psychological Association have both issued statements in support of providing gender-reassignment surgeries to those suffering from gender dysphoria.

In a suit brought by transgender advocates and the National Center for Lesbian Rights, the American Civil Liberties Union, and the Gay and Lesbian Advocates and Defenders; the HHS Departmental Appeals Board found that the current National Coverage Determination Record “is not complete and adequate to support the validity of the policy excluding coverage for gender-reassignment surgeries. The Board found that the 1981 report, which utilized data collected from medical and scientific sources that were published between 1966 and 1980, was no longer “reasonable in light of subsequent developments.” The challenge was filed on behalf of Denee Mallon, a 73-year-old transgender woman in Albuquerque, New Mexico. A Medicare recipient, Mallon was recommended to have gender-reassignment surgery by doctors to treat her gender dysphoria.

The board’s ruling cited the fact that “dozens of new studies have been conducted that confirm that sex-reassignment surgery is a safe and extremely effective treatment for individuals with severe gender dysphoria; advancements in surgical techniques have dramatically reduced the risk of complications from sex-reassignment surgery;” and that “a robust medical consensus has developed among mainstream medical organizations which endorse the treatment standards established by the World Professional Association for Transgender Health,” which deems such clinical treatment medically necessary.

Perhaps most tellingly, the Centers for Medicare and Medicare Services made no attempt to refute any of the claims that were made in support of beneficial effects of gender-reassignment surgeries for the transgendered. If the HHS board makes the decision that gender-reassignment surgery is indeed a “medically necessary” treatment for transsexuals, private health insurance companies will have no choice but to follow. Stay tuned!

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