LGBT Groups Challenge Medicare’s Refusal to Provide Healthcare to Transgender Patients

By Melanie Nathan, April 02, 2013.

(Washington, D.C., March 29, 2013)—Last week, several national LGBT groups and a cooperating attorney filed an administrative challenge to Medicare’s ban on medically necessary healthcare for transgender patients. Medicare, which provides healthcare to Americans ages 65 and older and younger people with certain qualifying disabilities, currently prohibits all forms of gender reassignment surgeries regardless of the individual patient’s diagnosis or serious medical needs.

The National Center for Lesbian Rights (NCLR), the American Civil Liberties Union (ACLU), Gay & Lesbian Advocates & Defenders (GLAD), and civil rights attorney Mary Lou Boelcke initiated the challenge on behalf of Denee Mallon, a transgender woman whose doctors have recommended surgery to alleviate her severe gender dysphoria.

“Medicare’s categorical exclusion of this care lacks any scientific basis,” said Shannon Minter, the Legal Director at NCLR. “Study after study has shown that these surgeries are the only effective treatment for many patients suffering from severe gender dysphoria.”

Ms. Mallon joined the United States Army when she was 17 years old and worked as a forensics investigator for a city police department after she was honorably discharged from the Army. She was later diagnosed with gender identity disorder, a serious medical condition that is characterized by intense and persistent discomfort with one’s birth sex.

“The American Medical Association, the Endocrine Society, and the American Psychological Association all support these treatments for transgender patients,” said Joshua Block, a staff attorney with the ACLU’s LGBT and AIDS Project. “These procedures have been performed for decades and are proven to be safe and effective.”

Medicare adopted the ban, which is codified as National Coverage Determination (NCD) 140.3, more than thirty years ago. Decades of extensive scientific and clinical research since that time have established that these surgeries are safe and effective.

As a result of the administrative challenge, the Department Appeals Board (DAB) of the U.S. Department of Health and Human Services (HHS) must review the ban, determine whether it is reasonable based on current standards of care, and reverse it if it is not.   The DAB is staffed by career civil servants who have been tasked with providing an impartial independent review of disputes concerning Medicare and other HHS programs. Earlier last week, the HHS Centers for Medicare and Medicaid Services (CMS) on its own initiative included a statement on its website that it would be reconsidering the ban.  CMS subsequently withdrew its proposal to reconsider the ban and through a spokesperson explained that the ban would instead be reviewed through the independent DAB process.

“What matters to us is that there will be a fair and scientifically based review of the ban.  We don’t think the medical data supports it and are hopeful that CMS will agree,” said Jennifer Levi, Transgender Rights Project Director for Gay & Lesbian Advocates & Defenders.

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The American Civil Liberties Union’s Lesbian, Gay, Bisexual & Transgender Project works to end discrimination based on sexual orientation and gender identity. http://www.aclu.org/lgbt-rights

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression. http://www.glad.org

The National Center for Lesbian Rights is a national legal organization committed to advancing the human and civil rights of the lesbian, gay, bisexual, and transgender community through litigation, public policy advocacy, and public education. http://www.nclrights.org

Mary Lou Boelcke is a civil rights attorney in Albuquerque, New Mexico.