In light of recent federal policy changes, Sen. Mary L. Washington (D-Baltimore City) and Congresswoman Anne R. Kaiser (D-Montgomery) are urging the Department of Health to rethink its Medicaid health care policy for transgender people in Maryland.
Washington and Kaiser wrote to Maryland Department of Health Secretary Dennis R. Schrader in early April, saying the state risked being sued for violating non-discrimination provisions under the Affordable Care Act. . Indeed, the current policy covers only a small set of gender affirmation procedures, and includes several exclusions and a long list of criteria that must be met to receive covered services.
“We strongly urge the Department to develop a new policy consistent with legal requirements and defined by clinical best practices to provide gender-affirming health care to our transgender population,” they wrote.
In a Friday afternoon call, Washington said the letter was her way of ensuring she was doing “due diligence in exploring all avenues to achieve this.”
“[I] hoped the legislative route would not be necessary,” Washington said.
Kaiser and Washington co-sponsored a invoice during the 2022 legislative session that would have extended coverage of gender-affirming medical services available to those with private insurance to Medicaid recipients.
The bill passed the Senate chamber but appeared to die out after a vote by the House Health and Government Operations Committee.
Tricia Roddy, deputy director of Medicaid at the Department of Health, responded to Washington and Kaiser this week saying the agency will not revise its policy.
“[W]While we continue to review new federal developments, if any, MDH has determined that no changes to existing Maryland Medicaid coverage are necessary at this time,” Roddy wrote Wednesday.
In April, the US Department of Health and Human Services announcement that it would interpret the Affordable Care Act’s anti-sex discrimination provisions 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 compel states to comply. They warned Schrader that the state risked being sued for not providing appropriate gender-affirming care benefits through its Medicare and Medicaid plans.
They also said the Department of Health could face lawsuits for discrimination from private citizens under its own straight.
“Maryland cannot afford to wait any longer for the Department to update its policy,” Washington and Kaiser wrote.
“Targeting and Discriminating Uniquely”
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 affirming surgery gender.
For a patient to be eligible for gender affirmation surgery, they must prove that they have had persistent gender dysphoria for at least two years.
According to the Mayo Clinic, gender dysphoria is the feeling of intense distress in people whose gender identity is different from the sex they were assigned at birth.
The patient’s dysphoria must not be the result of another mental illness. However, according to Maryland policy, the dysphoria must be so severe that it causes “clinically significant distress” or impairs an individual’s ability to function in social or occupational settings.
If suffering from another clinical mental health disorder — such as bipolar disorder, dissociative identity disorder, or borderline personality disorder — the patient should be medicated or given psychotherapy before a doctor can endorses gender-affirming surgery.
Patients should then also be assessed and given two signed letters from qualified mental health professionals. At least one of them must have a doctorate.
These letters should state that the patient has been on hormone replacement therapy for at least one year and, if possible, detail how long the patient has been presenting for by gender.
If the patient is requesting a mastectomy, only one letter is required and they do not need to have undergone continuous hormone replacement therapy.
Breast augmentation is only covered if the hormone prescribing physician has documented that a patient’s breast size is still causing severe psychiatric distress after one year of hormone replacement therapy.
Although Maryland healthcare plans are required to cover gender affirmation surgery, there are other services, like those that reconstruct the face, wax or modify the voice – and the second stage of a procedure of female-to-male genital reconstruction – which are not covered.
Many of these exclusions conflict with the recommendations standards of care of the World Professional Association for Transgender Health.
“These exclusions target and discriminate only against transgender people,” Washington and Kaiser wrote. “As such, the policy does not comply with state and federal laws.”
Roddy said the health department compared its existing policy to that of other states and reviewed the World Professional Association for Transgender Health’s standards of care.
Apart from their claims that the state’s current policy is discriminatory, Washington and Kaiser say it violates federal Medicaid law.
Below federal lawservices offered under health care plans must “be sufficient in quantity, duration and scope to reasonably achieve their purpose” and may not “withhold or arbitrarily reduce the quantity, duration or scope of any service required… solely because of the diagnosis, type of illness or condition.
According to lawmakers, Maryland’s Medicaid program “creates categorical exclusions to gender-affirming care” and “does not provide sufficient treatment.”
They also said the policy is in violation of the Maryland Code Regulationswhich states that managed care organizations must provide services and information that meet “the individualized needs of their enrollees, regardless of sex, sexual orientation or gender identity.”
Additionally, Washington and Kaiser alleged that the state violated a regulation forcing healthcare organizations to provide members with gender dysphoria with necessary medical treatment – not just gender-affirming surgery.
Roddy said the state’s Medicaid plan provides “post-transition services as medically necessary.”
“…existing Maryland Medicaid gender-affirming care coverage provides access to health care for transgender and non-binary people in Maryland within the legal authorities of the Medicaid program and President Biden’s Federal Executive Order” , she wrote.