As State Senator Brad Hoylman was pressing the Cuomo administration to issue a rule requiring New York insurers to pay for medical procedures related to gender transition, he had several conversations with Benjamin Lawsky, who heads the state agency that issued the rule on December 11, when both men were at a West Village playground with their kids.
“Nothing like the playground to talk about issues of state government,” said Hoylman, an out gay Democrat who represents the district that runs from 72nd Street to the West Village and from river to river in Lower Manhattan.
The playground summit occurred two or three times, but Lawsky and Hoylman are neighbors so they discussed the issue when they bumped into each other on the street and they also had “a couple of phone calls,” Hoylman said.
“They were very collaborative, I have to say,” Hoylman said.
The conversations began in June when Hoylman wrote to Lawsky, the superintendent of the New York Department of Financial Services, suggesting that the state require insurers to cover “transition-related health care” for transgender people. Connecticut issued such an order in 2013 and some insurers in New York were already paying for these services. New York is the 10th state to require this of insurers. The rule was issued after Governor Andrew Cuomo was elected to a second term in November.
“[Cuomo] took some heat,” Hoylman said. “He clearly expended some political capital.”
The rule was written to define as many procedures as possible as medically necessary to avoid having insurers refuse to cover some needed procedures with the argument that they are little more than plastic surgery. As insurers implement the change, Hoylman said he and advocates would be watching to guard against insurers saying some procedures are merely cosmetic.
“That is probably something that I will be following to ensure that important procedures are not found to be cosmetic procedures,” Hoylman said. “The language is pretty broad, which I think is a good thing.”
The rule says that any insurer who covers “mental health conditions may not exclude coverage for the diagnosis and treatment of gender dysphoria,” which describes “people whose gender at birth is contrary to the one with which they identify.” As with any medical or mental health condition, insurers are allowed to review procedures for gender dysphoria for medical necessity, but that review is subject to the same laws as all other procedures covered by private insurers.
Michael Silverman, the executive director of the Transgender Legal Defense and Education Fund, which reviewed the proposed rule before it was issued, said the experience of transgender people trying to get procedures covered by private insurers was no different from the experience of all consumers who have private insurance –– consumers battle for coverage and insurers try to deny it.
“Of course, there are going to be fights with insurance companies about what is medically necessary,” Silverman said. “We’re not seeing any differences.”
On December 17, the state Department of Health issued a proposed rule that would allow Medicaid, the government-run health plan for the poor, to cover transition-related healthcare for transgender people. A number of organizations have been pressing for the change for years.
“Over the years, there have been a number of lawsuits filed,” Silverman said. The Legal Aid Society and the Sylvia Rivera Law Project currently have a lawsuit against the state that seeks this change. The new Medicaid rule was an obvious move once the Cuomo administration chose to require that private insurers pay for transition-related healthcare.
“As a political matter, as a logic matter, it made little sense for the state to force private insurers to do what it wasn’t doing,” Silverman said.
The proposed rule excludes people under 18 from coverage and it has a list of procedures that it deems to be cosmetic and it will not pay for. The Medicaid rule is in a 45-day comment period and advocates are submitting comments that challenge these exclusions.
Currently, “353 natal males and 308 natal females” in the state Medicaid program have a gender dysphoria diagnosis, the state health department said in the filing. The estimated annual cost to New York of providing “hormone therapy only, partial [gender reassignment surgery], or full [gender reassignment surgery]” would be approximately $6.7 million, the state filing said.
The proposed Medicaid rule drew criticism from New Yorkers for Constitutional Freedoms, a conservative group. Westchester County Executive Rob Astorino, a Republican who lost to Cuomo in the governor’s race, and Martin Golden, a Republican who represents part of Brooklyn in the State Senate, also opposed the change. Their comments were published in the New York Post.