A breakthrough in transgender health care for Medicare enrollees

Brooklyn, NY- The United States Department of Health and Human Services (HHS) has ruled for the first time that a transgender person, who was denied genital reconstruction surgery by a Medicare Advantage (Part C) insurer, United Healthcare/AARP Medicare Complete (HMO), is entitled to those benefits.

Attorney Ezra Young, who initiated the case on behalf of his client, Ms. Charlene Lauderdale, received the decision on Thursday. This is the first ever HHS Medicare decision affirmatively granting surgical benefits to a transgender person. The insurer asserted that the benefits were not medically reasonable and necessary, but HHS cited evidence that Ms. Lauderdale’s physicians had found that it was, dismissing concerns raised by United Healthcare’s representative. In so doing, HHS explicitly held that the Standards of Care of the World Professional Association of Transgender Health (WPATH), long considered the gold standard in transgender health, were the applicable standards to be used. The decision is a breakthrough in transgender health care for Medicare enrollees.

The decision builds on the change in the “National Coverage Determination,” in May 2014, which removed a blanket Medicare exclusion for all transgender health care. That Determination, however, only opened the door to possibility of coverage of trans health care by Medicare. Many Medicare Advantage insurers have continued until today to deny all transgender health care everywhere in the country. The decision is also particularly interesting in light of the fact that HHS is right now considering regulations to implement section 1557 of the Affordable Care Act which, if adopted, would effectively prohibit the same types of transgender exclusions challenged by Lauderdale in almost all private health plans in the nation.

The importance of this decision is that it shows that HHS can and should push for strong trans health regulations based on sound medical reasoning. The decision is the most comprehensive discussion that HHS has ever had regarding trans care. It is a detailed and careful explanation of why all transgender people deserve their health care needs met without restriction. It follows the Standards of Care of the World Professional Association of Transgender Health, considered the gold standard for trans care. The decision is revolutionary, considering that the vast majority of transgender people have never been able to get Medicare coverage for transgender health benefits.

United Healthcare/AARP Medicare Complete (HMO) has the right to bring suit against HHS in a federal trial court to contest the decisionwithin 30 days.

“This decision sends a clear message. No transgender person may be denied surgical benefits simply because of outdated ideas regarding transgender health care,” said Ms. Lauderdale’s attorney, Ezra Young, of the Law Office of Jillian T. Weiss, P.C. “Genital reconstruction surgery is not experimental, and it is not cosmetic. It is life-saving treatment. Ms. Lauderdale, a decorated combat veteran, has shown true courage while patiently waiting years for the health care to which she is entitled as a right. Through her persistence, it is our hope that many others will now be able to obtain the health care they have been so long denied. I am only saddened by those for whom this decision has come too late.”

Mr. Young also adds, “We further applaud HHS’s implicit finding that transgender combat veterans, like Ms. Lauderdale, whom incur psychological injuries in the course of protecting our nation should not be denied access to medically necessary surgery.”

“I proudly served our country in the Air Force. I fought so that our country could remain the beacon of liberty and justice that its ideals call for. Today, this is a victory for the inalienable rights that we as Americans have justice and fairness under our Constitution,” said Ms. Lauderdale. “I am so relieved that I can now get the medical care that I have needed for so long. I hope that my decision will help other transgender Americans who have also been denied health care.” Ms. Lauderdale continued, “I am grateful for the strong support of my medical team at Houston’s Michael E. DeBakey VA Medical Center—especially psychiatrist Dr. Shelia LoboPrabhu—my wife Marlene, and Mr. Young.” Ms. Lauderdale adds, “I hope this victory encourages other transgender veterans and VA healthcare providers throughout the nation to continue to advocate for full and inclusive healthcare for transgender veterans.”

Jamison Green, President of the World Professional Association for Transgender Health (WPATH), said, "This welcome decision is a testament to the dedication of those healthcare providers who have persisted in researching and treating transgender, transgender, and gender-nonconforming people. The WPATH Standards of Care are informed by medical evidence, expert consensus, and the principles of respect and equality, which we at WPATH are grateful to see reflected in this decision, thanks to the HHS Medicare Appeals Council, a determined transgender enrollee, and her tenacious legal counsel."

"This decision from the Department of Health and Human Services (HHS) is a tremendously important step towards helping ensure that transgender people who rely on Medicare are no longer denied access to the basic, yet crucial, medical care they need," said HRC Legal Director Sarah Warbelow. "We applaud Ezra Young for his incredible victory in this case, and we continue to call on HHS to finalize the regulation for section 1557 of the Affordable Care Act, which would direct all insurance carriers to end discrimination in transition related care."

Mara Keisling of the National Center for Transgender Equality told Buzzfeed earlier today, "This decision reaffirms that Medicare beneficiaries deserve care based on real medicine, not knee-jerk biases. We hope it sends a clear message that insurance companies need to follow the established standards of care - and that patients can fight companies who don't."

Ezra Young represented Charlene Lauderdale in this proceeding as part of his private pro bono practice. The Law Office of Jillian T. Weiss PC did not represent Ms. Lauderdale.

The Gayly – January 30, 2016 @ 1:30 p.m.