Changes on the Horizon for Trans Care and Coverage
In April, a federal court opened the door for transgender Medicaid recipients to get coverage for gender-affirming care. Although a final decision in the case is still pending, individuals who receive BadgerCare Plus or any other form of Medicaid may now be able to receive some services that were previously excluded under state Medicaid rules, including surgeries and some hormone therapy.
Wisconsin Medicaid rules have long had an exclusion for “transsexual surgery,” hormone therapy, and other types of gender-affirming care. However, there is no such exclusion in federal Medicaid law. In addition, the Affordable Care Act includes an anti-discrimination rule (also known as Sec. 1557 of the ACA) that has been interpreted to cover transgender individuals and gender-related care. In March, based on this rule and on equal protection grounds, the Supreme Court of Iowa struck down Iowa’s Medicaid exclusion for gender-affirming care. Shortly after that decision, however, Iowa Gov. Kim Reynolds signed a budget bill that reinstated the ban, in spite of the ACA’s prohibition on coverage discrimination.
In April, a Wisconsin federal court issued a preliminary injunction in Flack v. Dep’t of Health Services, the case challenging our Medicaid exclusion. The injunction covers all Medicaid recipients seeking medically necessary gender-affirming care, but there are limitations on what care is covered – the specific exclusion on surgery has been struck down, but there is no guarantee of coverage for other trans-related services, including facial feminization surgery, voice therapy, and potentially even some hormone therapies. The case is ongoing and awaiting a final decision.
Meanwhile, the Trump administration has released a proposed rule to roll back Sec. 1557 from the ACA, which would mean that insurers and providers would no longer be prohibited from discrimination against transgender patients and their care. A recent article from the Kaiser Family Foundation outlines the proposed changes and the likely impact on disparity populations, including LGBT individuals. Comments are open until August 13, 2019.
The impact of this proposed rule on cases such as Flack remains to be seen; however, TLHW will follow the cases and provide updates as they become available.