December 11, 2013 at 11:59 am EDT | by Chris Johnson
Medicare to examine ban on gender reassignment surgery
transgender, caduceus, medicare, gay news, Washington Blade, health

HHS is set to reconsider the ban on Medicare-provided gender reassignment surgery. (Image public domain)

The Obama administration is set to re-examine the ban that prohibits Medicare from covering gender reassignment surgery, according to a memorandum obtained Tuesday by the Washington Blade.

The document from the Department of Health & Human Services, dated Dec. 2, finds that the reasoning for the ban is “not complete and adequate” to support denying Medicare coverage for transgender people seeking the procedure.

The HHS Department Appeals Board states the ban — which is codified as National Coverage Determination 140.3 — “fails to account for development in the care and treatment” for transgender people over the course of the last 30 years.

The next step, the memo states, is proceeding into a “discovery” phase for the taking of evidence to determine whether the ban can be justified.

Mara Keisling, executive director of the National Center for Transgender Equality, said “there really isn’t that much to say” at this point in the process.

“This is really a preliminary step,” Keisling said. “It’s a good sign, but we have more to go on this.”

Masen Davis, executive director of the Transgender Law Center, was optimistic the ban would be lifted following the discovery process.

“Current Medicare standards are based on science from the 1960s, so it’s about time for a review,” Davis said. “Because the current scientific evidence overwhelmingly shows that sex-reassignment surgeries are effective and medically necessary treatments for some transgender individuals, we are hopeful the board will find the exclusion is not supported.”

The DAB initiated the review of the ban on Medicare-provided gender reassignment surgery in response to a request filed in March by a quartet of LGBT advocates: the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders and civil rights attorney Mary Lou Boelcke.

The challenge was filed on behalf of Denee Mallon, a 73-year-old transgender woman in Albuquerque, N.M. A Medicare recipient, Mallon was recommended to have gender reassignment surgery by doctors to treat her gender dysphoria

In a joint statement provided to the Washington Blade in response to the HHS memorandum, the ACLU, NCLR and GLAD expressed optimism that DAB would come to the conclusion after discovery that the ban on Medicare-provided gender reassignment surgery should be lifted.

“Because the current evidence overwhelmingly shows that sex-reassignment surgeries are effective and medically necessary treatments for some individuals with gender dysphoria, we are hopeful the Board will find the exclusion is not supported,” the statement says.

According to the memorandum, the ban was put in place in 1989 as a result of a 1981 report from the National Center for Health Care Technology, an arm of HHS. The report concluded “transsexual surgery not be covered by Medicare at this time” because of the high rate of complications and questions about whether it was effective in treating gender identity disorder.

“Transsexual surgery for sex reassignment of transsexuals is controversial,” the regulation states. “Because of the lack of well controlled, long term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism, the treatment is considered experimental. Moreover, there is a high rate of serious complications for these surgical procedures. For these reasons, transsexual surgery is not covered.”

Despite the institution of this policy, the American Medical Association and the American Psychological Association support gender reassignment surgery for transgender people as a means to treat gender identity disorder.

Notably, the Centers for Medicare & Medicaid didn’t put up a fight in response to the request from LGBT advocates to lift the ban. According to the memo, CMS notified the board in June that it wouldn’t submit a response to their request to lift the ban.

Neither HHS nor CMS responded to the Blade’s request for comment on the determination or why it declined to defend the ban.

It’s unclear when the discovery period for reevaluating the ban on Medicare-provided gender reassignment surgery will come to an end. Shawn Jain, a spokesperson f0r the ACLU, said his organization doesn’t know when the process will be complete.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • Mindy Sagacious

    Actually it seems that the decision to ban this treatment was based on a decision in the mid-60’s by two pharmacist, who regarded SRS as mutilation, the reliability of this data is somewhat questionable.
    One thing for sure, the ban on supporting necessary treatment is based on archaic ideas and the folly of still trying to support this is “mud in the face”. It is discrimination in it’s finest. Let the HHS come up with some other reason, I don’t think so, unless it wants a fervent example made here, discrimination based on gender identity is illegal according to Title VII of the Civil Rights Act of 1964 (Title VII).

    http://www.eeoc.gov/laws/types/sex.cfm

  • Danielle Charlotte,

    I am transgendered too as well. I have been in my transition for the past 5 years. I asked my Dr. if he thinks there will be a day that health coverage will start covering SRS.. He told me that Medicare will be reviewing the need for SRS.. and if they should start to allow it then other insurance companies will be follow suit.. I been hoping this day comes as I try to save but in today’s economy it’s virtually almost impossible at times. I hope they begin to cover for SRS and I can get mine done.. I am at a point to where I don’t know when or where or what will happen.. All I know is that I cannot see myself without having it done. I am hoping for a miracle.

  • Donna Marie

    If you have a good doctor and a good medical coder, then they can code the reasons to use the drugs used for HRT in a way that they will be covered, most of the reasons for any generic drug not being covered can be fixed just in how the need for the drug is coded. The really great part is, they do not have to tell a LIE, because most who are old enough to have part D have medical conditions that hormones are used to treat, it is just not the first drug that comes to mind. Prostrate problems can be treated with Estrogen in Males and Testosterone is used to treat Depression and loss of libido in Women… You can find most of the info you need on US Government websites. The reasons that Hormones are not more widely used for these problems is the “Side Effects” Of course, if you are not concerned that Breast Growth is a “Side Effect” of using Estrogen for Prostrate Enlargement in Males or that Facial Hair growth is a “Side Effect” of using Testosterone to Treat Depression in Females…. The medical proof that they work very well for this is readily available, all you need to do is point this out to your doctor… Once he or she looks at the information most who are willing to treat Gender Issues will also see that they will not be doing anything that would break any law or the Hippocratic Oath… It is just that they need to be willing to think out of the box and ‘Informed Consent” works just as well for protecting the doctor for this “Off Label” use of drugs as the “Informed Consent” for treating Gender Issues…

  • Carmen

    If you want to pay for elective surgery then that is your choice, but you cant expect health coverage paid for by tax payers to pay for this ELECTIVE procedure. I am not trying to be mean or burst bubbles, if you want it pay for it yourself, plain and simple. What next, cosmetic surgery for everyone on free health plans paid for by someone else? Or is that what this is?

    • Danielle

      Nothing elective about it.. That’s the entire point to this article.. This is a medical condition and surgery is the way to fix it!

  • pepper3321

    This is so stupid.

    Medicare is for old people.

    • Danielle

      It is also for people who have become disabled because of injury or other medical problems they may have..

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