June 2, 2014 — An HHS appeals board on Friday overturned Medicare's 33-year ban on gender affirmation surgery, ruling that the policy was "no longer reasonable" because medical professionals have determined the procedure is a safe and effective treatment for gender dysphoria, the New York Times reports (Caryn Rabin, New York Times, 5/30).
According to the Wall Street Journal, the decision does not require Medicare to cover the surgery in all cases. Instead, it ensures that CMS will consider requests on a case-by-case basis, with coverage for individual beneficiaries contingent on medical evidence that the procedure is appropriate for the patient (Armour, Wall Street Journal, 5/30). The decision only applies to Medicare beneficiaries, and it covers only surgery, not other treatments, such as hormones (New York Times, 5/30).
Transgender health advocates said the decision could influence the policies of Medicaid and private insurers, which often take direction from Medicare in determining if procedures are experimental, elective or medically necessary.
HHS in 1981 made a "national coverage determination," or NCD, that Medicare would not cover gender affirmation surgery because the procedure was experimental, too controversial and medically risky (AP/USA Today, 5/30).
However, the American Medical Association, the American Psychological Association and other medical groups have since determined that the procedure is a safe option for individuals diagnosed with gender dysphoria.
In 2013, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders and the National Center for Lesbian Rights filed a lawsuit challenging the rules on behalf of Denee Mallon, a 74-year-old transgender woman and Army veteran from New Mexico (Eunjung Cha, Washington Post, 5/30).
The panel on Friday said that HHS lacked sufficient evidence in 1981 to issue the blanket ban.
Further, the panel members said they "have no difficulty concluding that the new evidence, which includes medical studies published in the more than 32 years since issuance of the 1981 report underlying the NCD, outweighs the NCD record and demonstrates that transsexual surgery is safe and effective and not experimental."
According to the AP/USA Today, CMS under the ruling must eliminate the ban within 30 days and re-evaluate Mallon's medical claim in light of the change. CMS has decided not to challenge the ruling, and the agency had in fact started the process of lifting the ban before Mallon filed her complaint (AP/USA Today, 5/30).
Jennifer Levi, director of GLAD's Transgender Rights Project, said the ruling "brings federal Medicare policy up to 21st-century standards for transgender people, and acknowledges that there's no scientific or medical basis for categorically excluding coverage of sex reassignment surgery for people who need it" (New York Times, 5/30).
Meanwhile, Leanna Baumer, senior legislative assistant with the Family Research Council, said the ruling "ignores the complexity of issues" involved, adding, "Real compassion for those struggling with a gender identity disorder is to offer mental health treatments that help men and women become comfortable with their actual biological sex -- not to advocate for costly and controversial surgeries subsidized by taxpayers" (Washington Post, 5/30).