NYS Mandates Medicaid Health Plans To Provide Coverage To Transgender, Gender Non-Conforming New Yorkers

The Legal Aid Society, Willkie Farr & Gallagher LLP, and the Sylvia Rivera Law Project today lauded guidelines promulgated by the New York State Department of Health (NYSDOH) that address a variety of ways in which Medicaid Managed Care plans have been arbitrarily denying care to transgender and gender non-conforming Medicaid beneficiaries for the treatment of gender dysphoria. These guidelines clearly state that treatment for gender dysphoria must be provided to people of all genders, including those with non-binary gender identities.

“We are pleased to see the State reaffirming that access to gender affirming care must be for all people who seek treatment for gender dysphoria regardless of gender identity, and that beneficiaries must be protected from arbitrary administrative burdens that are not required by state regulation,” said Heidi Bramson, Staff Attorney with the Health Law Unit at The Legal Aid Society.

“We applaud the State’s issuance of guidelines designed to both ensure that Medicaid managed care plans honor Medicaid-eligible New Yorkers’ right to coverage of gender-affirming healthcare and respect a treating physician’s judgment that gender-affirming care is medically necessary,” said Wesley Powell, partner at Willkie Farr & Gallagher LLP.

"It will be a relief to so many New Yorkers that there are now stronger guidelines curbing the often humiliating and degrading practices that insurance companies have been subjecting transgender and gender non-conforming people to over the past few years. We are grateful to all the transgender and gender non-conforming people who have reported these practices and helped us to push for needed change,” said Mik Kinkead, Staff Attorney at the Sylvia Rivera Law Project.

Importantly plans must accept a treating physician’s determination that the gender affirming care requested is medically necessary. Plans may impose administrative prior authorization requirements but must accept the treating provider’s assessment. More so, when a provider makes this determination, plans cannot require enrollees submit photographs in order to document the need for treatment. Such a requirement often led to the plan replacing a doctor’s treatment recommendation with that of the plan’s own arbitrary determination of what was best for an enrollee.

More so, decisions on prior authorization for treatment must be made as fast as the enrollee’s condition requires. Before making an adverse determination, the plan must make at least one attempt to consult with the treating provider, and at least one of the plan’s clinical staff involved in the adverse determination must have expertise in the treatment of gender dysphoria.

Some of the items addressed in the guidance will serve to reduce arbitrary administrative demands that served to deny qualifying individuals medically necessary care. The guidance clarified that plans cannot require that enrollees have at least 12 months of continuous mental health counseling prior to surgery, but instead must be dependent on the client’s clinical profile, clarifying that this duration may be shorter as appropriate. Similarly, plans cannot require a year of hormone therapy prior to all procedures, and can only require hormone therapy if it is consistent with the enrollee’s gender goals, clinically appropriate, and recommended by the treating provider.

Two letters from qualified medical providers must attest to the enrollee’s need for the requested care. The guidelines now clarify that these letters must be viewed in tandem, and that each individual letter does not have to address all of the requirements for coverage; plans cannot require that the two qualified professionals submitting letters must work for different organizations; and plans cannot require time limits for the submission of clinical documentation that have the effect of delaying access to care (e.g. having clinical letters “expire” after 60 days, often requiring enrollees to make additional unnecessary trips to physicians who might be hours away or have long waits for appointments).

The state will now require that plans who want to adopt criteria for the authorization of gender dysphoria treatment must submit those criteria to DOH for approval.

“For far too long transgender and gender non-binary people have been denied access to gender affirming care due to arbitrary insurance rules that go against best clinical practice. The new Medicaid guidance sends a powerful message that healthcare plans must follow well-accepted standards of care and allow trans and gender non-binary people to access medically necessary care that aligns with their individual goals,” said Asa Radix, MD, MPH, FACP, Senior Director for Research and Education at Callen-Lorde Community Health Center.