Medicare is being asked to review a policy that prohibits transgender people from receiving coverage for gender reassignment surgery.
Last week, a quartet of LGBT rights groups — the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders and civil rights attorney Mary Lou Boelcke — filed an administrative challenge to eliminate Medicare’s ban on coverage for the procedure.
Joshua Block, a staff attorney with the ACLU’s LGBT Project, said the challenge was filed because a policy change is “overdue.”
“It is completely out of line with any scientific or medical evidence or standards of practice,” Block said. “There are people out there who are in desperate need of the surgery. Their doctors have told them they need the surgery. And they’re being told it’s not covered because it was allegedly experimental 30 years ago.”
The challenge, sent on March 26, was filed on behalf of Denee Mallon, a transgender woman in Albuquerque, New Mexico. A Medicare recipient who’s age 73, Mallon was recommended to have gender reassignment surgery by doctors to treat her gender dysphoria.
A veteran of the U.S Army, Mallon joined the the service when she was 17 and worked as a forensics investigator for a city police department. She was later diagnosed with gender identity disorder.
Mara Keisling, executive director of the National Center for Transgender Equality, said she’s “very excited” about the challenge.
“Americans, in general, are really tired of health care decisions being made by legislators and bureaucrats and insurance companies,” Keisling said. “Most of us believe that health care decisions should be made by patients and doctors, and the medical community is pretty unified. This is a legitimately necessary surgery.”
Keisling said NCTE isn’t directly involved in the challenge because it involves lawyers representing clients, and the organization doesn’t provide those legal services.
The ban, which is codified as National Coverage Determination 140.3, was put in place in 1981 during the Reagan administration. Keisling said the ban was put in place as a result of the stigma on transgender people at the time and lobbying from insurance groups.
The National Coverage Determination from 1981 spells out why transgender people are unable to receive this coverage under Medicare.
“Transsexual surgery for sex reassignment of transsexuals is controversial,” the regulation states. “Because of the lack of well controlled, long term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism, 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.”
Despite this policy, the American Medical Association and the American Psychological Society support gender reassignment surgery for transgender people.
Block said the challenge has been filed at this time — more than 30 years after the ban was put in place — because “each year that goes by, it becomes ever more clear how unfounded the categorical sweeping ban is.”
“Each year that goes by, there’s more and more evidence that just reaffirms the widely accepted view that these surgeries are safe, medically necessary and effective to treat a serious medical condition,” Block said.
Now that the challenge has been filed, the Department Appeals Board of the Department of Health & Human Services is set to review the ban, determine if it’s reasonable under current standards of care and make a decision on whether to reverse it. It’s estimated the process could take months to resolve.
It’s unclear how many transgender people the change would affect. A recent study from the Williams Institute found that one-third of one percent of Americans identify as transgender, and an estimated 48 million people receive coverage under Medicare. Given those numbers, about 144,000 transgender people are receiving coverage under Medicare.
In an apparently separate development last week, the Centers for Medicare & Medicaid Services included a statement on its website asking for public comment because it would reconsider the ban. But the notice was removed on Friday from the agency’s website after conservative media, such as Drudge Report, took note of it.
Brian Cook, a CMS spokesperson, told the Blade solicitation for public comment was removed as a result of the legal challenge from LGBT groups coming to light.
“An administrative challenge to our 1981 Medicare national coverage determination concerning sex reassignment surgery was just filed,” Cook said. “This administrative challenge is being considered and working its way through the proper administrative channels. In light of the challenge, we are no longer re-opening the national coverage determination for reconsideration.”
Although the challenge was filed last week, LGBT groups didn’t notify the press about it until Monday. Block said the notice that went up on the Medicare website — and its subsequent removal — prompted the news statement.
“I think there were a lot of questions — particularly by members of the transgender community — about the status of NCD and what this administrative challenge was, and so we thought it was important to give affirmative clarification about what this challenge is and how it’s separate from the CMS process,” Block said.