Section 1557 of the federal Patient Protection and Affordable Care Act (ACA) prohibits discrimination on the basis of race, color, national origin, sex, age, or disabilities in health programs receiving federal funding, health programs administered directly by the federal government, and qualified health plans offered on health benefit exchanges. Federal rules implementing this requirement prohibit discrimination in the issuance of health plans, the denial or limitation of coverage, and marketing practices. Rules also prohibit discrimination against transgender individuals and prohibit insurers from categorically excluding gender transition services.
In 2016, a federal district court issued a nationwide injunction enjoining the enforcement of the federal rules prohibiting discrimination on the basis of gender identity or termination of pregnancy—Franciscan Alliance, Inc. v. Burwell (2016). The court subsequently stayed its ruling and in 2019, the United States Department of Health and Human Services (HHS) proposed rules clarifying the scope of the ACA's nondiscrimination provisions. In June 2020, HHS issued final regulations implementing Section 1557, which significantly narrows the scope of a rule issued in 2016 by the Obama Administration. The rules, among other provisions, removed gender identity and sex stereotyping from the definition of prohibited sex-based discrimination and eliminated the provision that prohibits a health plan from categorically or automatically excluding or limiting coverage for health services related to gender transition. Federal courts in New York and Washington, DC have since blocked the implementation of the 2020 HHS rules relying on an August 2020 Supreme Court ruling, in Bostock v Clayton County, Georgia (2020), that found discrimination based on sex, encompasses sexual orientation and gender identity in the context of employment.
State law prohibits a health carrier offering a non-grandfathered health plan in the individual or small group market from discriminating against individuals because of age, expected length of life, present or predicted disability, degree of medical dependency, quality of life, or other health conditions. Such a health carrier may not, with respect to the health plan, discriminate on the basis of race, color, national origin, disability, age, sex, gender identity, or sexual orientation. Further, health plans and state Medicaid services may not discriminate on the basis of gender identity or expression, or perceived gender identity or expression, in the provision of non-reproductive health care services.
For health plans issued on or after January 1, 2022:
The Health Care Authority (HCA) and managed care plans must not discriminate in the delivery of a service on the covered person's gender identity or expression or apply categorical cosmetic or blanket exclusions to gender affirming treatment. HCA and managed care plans must not exclude facial feminization surgeries and facial gender affirming treatment as cosmetic when prescribed as gender affirming treatment. HCA and manage care plans must ensure health care providers who have experience prescribing or delivering gender affirming treatment conduct utilization reviews for any claim for gender affirming treatment. If a managed care plan does not have an adequate network for gender affirming treatment, it must ensure timely and accessible delivery of care at no greater expense to the enrollee had the care been provided by an in-network provider.
Gender affirming treatment means a service or product a health care provider prescribes to an individual to treat any condition related to the individual's gender identity and is prescribed in accordance with generally accepted standards of care.
The Insurance Commissioner, in consultation with the HCA and the Department of Health, must report on the geographic access to gender affirming treatment across the state. The report must be updated biannually.
The committee recommended a different version of the bill than what was heard. PRO: Gender affirming care improves outcomes for the transgender community. Access to care reduces suicide and depression rates. Categorizing needed procedures as cosmetic forces people to seek care on the black market or outside the country. This bill can reduce care disparities within the transgender community. Loopholes remain in the law that allows carriers to deny needed coverage. Gender affirming care is lifesaving care and improves mental health. Clearly defining what gender affirming care means provides a clear path to relief.
OTHER: Carriers are unclear if the bill is an expansion required coverage but will work with the sponsor to address that concern.