The reasoning used by the Obama Administration to arrive at its requirement that health plans cover “gender transition” treatments sets a troubling precedent for future de facto coverage mandates.Indeed, because this process started with what could be called a “hard case”—meaning one for which the Administration had to creatively and laboriously extrapolate its desired conclusion from the underlying statute—should HHS establish a precedent on such tenuous grounds, it would become much easier to subsequently achieve similar results in other areas.Those 164 million Americans have coverage that is issued or administered by one of 181 insurance companies that would be subject to this regulation because those insurers also provide coverage to other individuals under federally subsidized ACA exchange plans, Medicare Advantage plans, or Medicaid managed-care contracts.
Such entities include a hospital, health clinic, group health plan, health insurance issuer, physician’s practice, community health center, nursing facility, residential or community-based treatment facility, or other similar entity.
A health program or activity also includes all of the operations of a State Medicaid program. all tax credits under Title I of the ACA, as well as payments, subsidies, or other funds extended by the Department to any entity providing health insurance coverage for payment to or on behalf of an individual obtaining health insurance coverage from that entity or extended by the Department directly to such individual for payment to any entity providing health insurance coverage. Furthermore, HHS makes clear its intention to apply this regulation to all of a health insurer’s business if any of the insurer’s customers receive a federal coverage subsidy.
The Administration’s strategy begins with the creation of three definitions in the proposed rule that, collectively, redefine and expand the meaning of the word “sex” in the application of anti-discrimination statutes.
First, it defines discrimination “on the basis of sex” as including “sex stereotyping, or gender identity.” Second, it defines “gender identity” as “an individual’s internal sense of gender, which may be different from that individual’s sex assigned at birth.” Third, it defines “sex stereotypes” as referring to stereotypical notions of gender, including expectations of how an individual represents or communicates gender to others, such as behavior, clothing, hairstyles, activities, voice, mannerisms, or body characteristics.
Consequently, the Administration proposes to overrule, by regulatory fiat, the judgments of any health plans or medical professionals holding contrary views.
The Administration’s approach to regulating gender transition coverage and treatments is relevant for understanding not only that particular mandate, but also how this approach could establish a precedent for imposing future coverage mandates.First, HHS defines a “covered entity” subject to the regulations as an “entity that operates a health program or activity, any part of which receives Federal financial assistance.” It then defines “health program or activity” as: [T]he provision or administration of health-related services or health-related insurance coverage and the provision of assistance to individuals in obtaining health-related services or health-related insurance coverage.For an entity principally engaged in providing or administering health services or health insurance coverage, all of its operations are considered part of the health program or activity, except as specifically set forth otherwise in this part.In this proposed rule, the Administration not only asserts the power to determine what constitutes appropriate medical treatment; it also defines the scope of the rule so broadly that it will apply to virtually all current health plans and medical providers.This expansive scope is established through several steps.Indeed, in the “Regulatory Impact Analysis” section it notes, “We anticipate that a large number of providers may need to develop or revise policies or procedures to incorporate this prohibition.” HHS again uses the hypothetical hysterectomy example to illustrate the point, stating: A provider specializing in gynecological services that previously declined to provide a medically necessary hysterectomy for a transgender man would have to revise its policy to perform the procedure on transgender individuals in the same manner it provides the procedure for other individuals. Thus, the Administration is asserting that determinations by the HHS Office for Civil Rights of what constitutes appropriate medical treatment will be imposed on health plans and medical providers by regulatory fiat.