On Wednesday, March 2, 2022, the Secretary of Health and Human Services (HHS) announced a notice affirming rights and protections for gender-affirming care.  From a health plan context, HHS confirms the following:

• Parents or caregivers who believe their child has been denied health care, including gender affirming care, on the basis of that child’s gender identity, or health care providers who believe that they are or have been unlawfully restricted from providing health care to a patient on the basis of that patient’s gender identity, may file a complaint with the Office of Civil Rights (OCR).
  • This means if a health plan denies claims for gender affirming care, or refuses to contract with a health care provider offering such care, the family or provider can file a civil rights complaint to launch an investigation into the plan.
• The federal privacy law HIPAA (the Health Insurance Portability and Accountability Act) permits, but does not require, health plans and health care providers to disclose protected health information (PHI) without the individual’s consent when “required by law.”
  • Essentially, HHS is giving plans and providers permission to not disclose gender affirming care or consultation when a new law or rule is implemented somewhere that compels reporting such care in violation of the federal civil rights mentioned above.

This guidance follows Texas Governor Greg Abbott’s February 22^nd order that it is “against the law to subject Texas children to a wide variety of elective procedures for gender transitioning including reassignment surgeries that can cause sterilization, mastectomies, removals of otherwise healthy body parts, and administration of puberty-blocking drugs or supraphysiologic doses of testosterone or estrogen. See TEX. FAM. CODE § 261.001(1)(A)–(D) (defining “abuse”).”

The impact to health plans is two-fold.

1. Health plans nationwide are going to find it very problematic to deny (a) gender affirming care a provider deems medically necessary, and (b) contracting with a provider offering such care (even if they’re in a state that prohibits such contracting).
   
2. Licensed individuals (i.e. doctors, nurses, etc.) with direct contact with an affected child have a “duty to report” what Texas law defines as “abuse” (i.e., they must report when a health care provider is providing gender affirming consultation and services as well as when a parent is seeking such services on behalf of their minor child). This will also be true for health plans, who may not have the same “duty to report” but nevertheless might be asked by a state enforcement agency to divulge information on gender affirming care and consultations. OCR is encouraging licensed providers and health plans to hide behind HIPAA to avoid sharing this PHI.

There are already lawsuits underway to challenge Gov. Abbott’s order. Texas Attorney General Ken Paxton believes the US District Court in Austin will rule against the order, and he intends to appeal it to the Texas Supreme Court.

The White House also made several announcements worth your time here:

Written by: KC Rippstein & Michelle Cammayo

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.