In light of recent federal policy changes, Sen. Mary L. Washington (D-Baltimore City) and Del. Anne R. Kaiser (D-Montgomery) the Department of Health and Human Services to revise its Medicaid policy on health care for transgender Marylanders.
Washington and Kaiser wrote to Maryland Secretary of Health and Human Services Dennis R. Schrader in early April, saying the state was at risk of being sued for violating the nondiscrimination provisions of the Affordable Care Act. That’s because the current policy covers only a small number of gender confirmation procedures and contains multiple exclusions and a long list of criteria that must be met in order to receive covered services.
“We urge the department to develop a new policy that meets regulatory requirements and is defined by clinical best practices to provide gender-affirming healthcare to our transgender population,” they wrote.
On a call Friday afternoon, Washington said the letter was her way of making sure she was “doing her due diligence to explore all avenues to make this happen.”
“[I] had hoped that the legislative route would not be necessary,” Washington said.
Kaiser and Washington sponsored a invoice during the 2022 legislature, which would have expanded coverage of gender-affirming medical services for those with private insurance to Medicaid recipients.
The legislation passed the Senate chamber but appeared to disappear after a vote by the House Health and Government Operations Committee.
Tricia Roddy, the Medicaid deputy director at the Department of Health, responded to Washington and Kaiser this week, indicating that the agency would not be revising its policy.
“[W]While we will continue to review new federal developments as appropriate, MDH has determined that no change to existing Maryland Medicaid coverage is required at this time,” Roddy wrote Wednesday.
In April, the US Department of Health announced that it would interpret the anti-gender discrimination provisions in the Affordable Care Act to include a prohibition on discrimination based on gender identity and sexual orientation.
According to Washington and Kaiser, the federal agency supports transgender patients who file discrimination complaints to demand compliance from states. They warned Schrader that the state faces the risk of litigation for failing to provide adequate gender-affirming care services through its Medicare and Medicaid plans.
They also said that the Department of Health itself could face discrimination claims from private individuals Law.
“Maryland cannot afford to wait any longer for the Department to update its policy,” Washington and Kaiser wrote.
“Clearly targeted and discriminatory”
The Maryland Medical Assistance Program politics Requires organizations under the state Medicaid system to cover certain transgender health services, including outpatient mental health services to treat gender dysphoria, hormone replacement therapy, laboratory services, and gender confirmation surgery.
For a patient to qualify for gender-affirming surgery, they must demonstrate that they have had persistent gender dysphoria for at least two years.
According to the Mayo Clinic, gender dysphoria is the intense feeling of need in people whose gender identity differs from the gender they were assigned at birth.
The patient’s dysphoria must not be the result of another mental illness. However, according to Maryland’s policy, dysphoria must be severe enough to cause “clinically significant distress” or impair a person’s ability to function in social or occupational settings.
If they have another clinical mental disorder — such as bipolar disorder, dissociative identity disorder, or borderline personality disorder — the patient must be medicated or receive psychotherapy before a doctor will sign off gender reassignment surgery.
Patients must then also be evaluated by qualified mental health professionals and receive two signed letters from them. At least one of them must have a PhD.
These letters must state that the patient has been on HRT for at least one year and, if possible, indicate how long the patient has been presenting as his or her sex.
If the patient is seeking a mastectomy, only one letter is required and they do not need to have been on continuous hormone replacement therapy.
Breast augmentation will only be covered if the hormone prescriber has documented that a patient’s breast size is still causing severe psychiatric distress after one year of hormone replacement therapy.
While Maryland’s health plans are required to cover gender-confirmation surgeries, there are other services, such as those that reconstruct the face, remove hair, or alter the voice — and don’t cover the second phase of a female-to-male genital reconstruction procedure.
Many of these exclusions contradict the recommendations standards of care by the World Professional Association for Transgender Health.
“These exclusions clearly target and discriminate against transgender people,” Washington and Kaiser wrote. “As such, the policy violates state and federal law.”
Roddy said the Department of Health compared its existing policies to those of other states and reviewed the World Professional Association for Transgender Health’s standards of care.
Aside from their claims that the state’s current policy is discriminatory, Washington and Kaiser say it violates federal Medicaid law.
Under federal lawServices provided under health care plans must be “sufficient in amount, duration, and scope to adequately accomplish their purpose” and must not arbitrarily refuse “the amount, duration, or scope of a required service… solely on the basis of diagnosis, type.” or reducing disease or condition.”
According to lawmakers, Maryland’s Medicaid program creates “categorical exclusions from gender-affirming care” and “does not provide adequate treatment.”
They also said the policy violated the Code of Maryland regulationswhich states that managed care organizations must provide services and information that “meet the individual needs of their participants, regardless of sex, sexual orientation or gender identity”.
In addition, Washington and Kaiser claimed that the state violated a regulation Care organizations must provide members suffering from gender dysphoria with the necessary medical treatments — not just gender confirmation surgeries.
Roddy said the state’s Medicaid plan provides for “post-transition services as medically necessary.”
“…existing Maryland Medicaid gender-affirming long-term care insurance provides access to health care for transgender and non-binary Marylanders within the statutory powers of the Medicaid program and President Biden’s federal executive order,” she wrote.