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HHS, Medicare & GLBTQ patients

Denee Mallon

We should see a final rule on Section 1557 of the ACA in the early part of 2016. It will include discrimination based on the patient’s gender identity in the definition of sex discrimination. And:

The proposed rule makes clear HHS’s commitment, as a matter of policy, to banning discrimination based on sexual orientation, and requests comment on how a final rule can incorporate the most robust set of protections against discrimination that are supported by the courts on an ongoing basis.

Last year Medicare eliminated its ban on gender reassignment surgery. Tl;dr – Medicare had a 30+ year old national policy that deemed the treatments experimental and therefore non-covered. Denne Mallon challenged the policy, HHS declined to defend the policy. No more non-coverage policy.

Since that time, the only Medicare administrative contractor to create any sort of coverage guidance is the one for West Virginia, most of Virgina and the Carolinas. I think one other contractor is working on a coverage article, but it may not be necessary. Yesterday, Medicare announced that it is seeking  comments on a national coverage policy, which would create a single coverage policy for the entire nation:

Gender dysphoria (previously known as gender identity disorder) is a classification used to describe persons who experience significant discontent with their biological sex and/or birth gender. Therapeutic options for gender dysphoria include behavioral and psychotherapies, hormonal treatments, and a number of surgeries used for gender reassignment.

CMS received a request to review the available evidence and conduct a national coverage determination (NCD) review to determine whether health outcomes are improved from treatment for Gender Dysphoria and Gender Reassignment Surgery.

(Bonus Maryland Pride – Nehael Shields, the requester, is from Berlin, Md.)

One reason a national policy is preferable to a jurisdiction-by-jurisdiction policy is it means that if a patient moves from one Medicare jurisdiction to another during treatment, what is covered will remain consistent.


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