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CA insurance commissioner issues order in support of trans youth accessing medical care

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California Insurance Commissioner Ricardo Lara. Photo: Courtesy Ricardo Lara
California Insurance Commissioner Ricardo Lara. Photo: Courtesy Ricardo Lara  

California Insurance Commissioner Ricardo Lara is taking steps to ensure transgender youth are not denied access to medical care by their insurance company.

Lara announced Wednesday, December 30, that he had directed the Department of Insurance to issue a General Counsel Opinion Letter clarifying that under existing California law, health insurance companies may not deny coverage for male chest reconstruction surgery for female-to-male patients undergoing gender-affirming care for gender dysphoria based solely on a patient's age. The letter, signed by General Counsel & Deputy Commissioner Kenneth B. Schnoll, was in response to an inquiry the department had received from a transgender agency in San Diego.

TransFamily Support Services had contacted the state department after learning about several youth under 18 years old who are transitioning from female to male and were denied coverage for male chest surgery. After looking into the matter, the insurance department determined that denying coverage for mastectomy and reconstruction of a male chest based solely on age is impermissible under state laws requiring coverage of reconstructive surgery.

The department is now instructing health insurance companies that they must consider a patient's specific clinical situation in determining medical necessity. According to the state agency, health insurance companies should evaluate their coverage criteria for gender dysphoria treatment and eliminate any noncompliant practices to avoid needlessly delaying and interfering with medical care recommended by a patient's doctor.

"For far too long, individuals diagnosed with gender dysphoria have had to battle a host of challenges to get access to gender-affirming care in order to be their true selves," stated Lara, a gay man who is a former state legislator from Los Angeles County. "Social stigma, misconceptions about gender dysphoria and its treatment, and outdated medical criteria create barriers to necessary medical care that can lead to tragic results for individuals with gender dysphoria, especially for our transgender youth."

California law already provides protections meant to reduce these barriers to gender-affirming care for gender dysphoria, the state agency stated in a news release. But it noted, due to complaints from young Californians and their parents, some health insurance companies may still use coverage criteria and processes that wrongfully deny coverage, and place the burden on consumers to pursue their legal rights to transgender health services through time-consuming appeals and independent medical reviews.

In its letter to the San Diego agency, the insurance department referenced Insurance Code section 10123.88 that requires all health insurance policies to cover reconstructive surgery necessary to "improve function" or "create a normal appearance, to the extent possible." It also referenced Insurance Code section 10140 regulations prohibiting discrimination "on the basis of an insured's or prospective insured's actual or perceived gender identity, or on the basis that the insured or prospective insured is a transgender person."

The letter also pointed to Section 2561.2(a)(4) of Title 10 of the California Code of Regulations, which specifically prohibits the denial or limitation of coverage, or denial of a claim, for services due to an insured's actual or perceived gender identity or for the reason that the insured is a transgender person.

The insurance department thus determined that imposing strict age limits on coverage of male chest reconstruction surgery when it is requested to treat gender dysphoria but not other medical conditions, such as breast cancer or trauma, constitutes discrimination in health coverage based on age, sex, gender identity, gender expression, sexual orientation, and health conditions in violation of state and federal law.

"TransFamily Support Services is proud to partner with the California Department of Insurance to remove the age barrier for gender-affirming care," stated Kathie Moehlig, the agency's executive director. "This barrier was discriminatory and detrimental to the lives of trans youth. To have to navigate the overwhelming barriers to health care should not be a part of their experience. Transgender youth already face so many challenges from unsupportive families, bullying at school, social stigmas, and even violence."

The World Professional Association for Transgender Health, an international organization that provides evidence-based standards of care for transgender people, states that male chest reconstruction surgery to treat gender dysphoria could be carried out in individuals under 18 "depending on an adolescent's specific clinical situation and goals for gender identity expression."

The use of rigid age criteria in determining medical necessity, and thus insurance coverage, for female-to-male chest reconstruction surgery does not allow consideration of each individual's unique clinical situation, noted Lara's office in its release, contrary to the generally accepted standards of care for transgender health and the requirements of state and federal law.

"Today the state of California has put insurance companies on notice that they cannot deny access to medically-necessary care based on outdated rules that are not supported by evidence or scientific consensus," stated Dr. Ward Carpenter, co-director of health services at the Los Angeles LGBT Center. "In so doing, the state not only expands access to health care but also takes an important step in saving the lives of transgender and non-binary adolescents struggling with gender dysphoria, depression and suicidal thoughts. Decisions about an adolescent's health must be left to the patient, their families and their care providers, not to insurance companies."

Gay Assemblyman Evan Low (D-Campbell), chair of the Legislative LGBTQ Caucus, thanked Lara and his office for their "careful consideration" of the insurance problems trans teens have faced, as well as the Southern California agencies for their advocacy around the issue, in a statement he released Wednesday afternoon.

"The state of California has always led the way on issues of equality, and this legal opinion takes a much-needed stand to protect the rights of California's LGBTQ residents, regardless of age," noted Low. "Every patient, including those experiencing gender dysphoria, deserves to have their specific clinical situation taken into consideration. Discrimination does not have a place in California and should not have a place anywhere in health care."

The insurance department's six-page letter to the San Diego agency laying out its determination about insurance coverage for such medical procedures can be read here.

UPDATED 12/30/2020 with comment from Assemblyman Evan Low.

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