HLT-19-16-00008-A Transgender Related Care and Services
8/31/16 N.Y. St. Reg. HLT-19-16-00008-A
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 35
August 31, 2016
RULE MAKING ACTIVITIES
DEPARTMENT OF HEALTH
NOTICE OF ADOPTION
I.D No. HLT-19-16-00008-A
Filing No. 792
Filing Date. Aug. 16, 2016
Effective Date. Aug. 31, 2016
Transgender Related Care and Services
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 505.2(l) of Title 18 NYCRR.
Statutory authority:
Public Health Law, sections 201 and 206; Social Services Law, sections 363-a and 365-a(2)
Subject:
Transgender Related Care and Services.
Purpose:
To revise and clarify the criteria for Medicaid coverage of transgender related care and services.
Text or summary was published
in the May 11, 2016 issue of the Register, I.D. No. HLT-19-16-00008-P.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.ny.gov
Assessment of Public Comment
The proposed amendments would revise the Department’s existing regulations at 18 NYCRR § 505.2(l) pertaining to Medicaid coverage of transgender related care and services. Section 505.2(l)(5) of the proposed regulation lists certain surgery, services, and procedures presumed to be cosmetic (i.e. performed solely for the purpose of improving appearance); coverage of these services would be available if prior approval is received based on a finding of medical necessity. Seven comments were received: two from lawyers or legal organizations; one from a health center; and four from individuals, one of whom is transgender.
Comment: Some commenters took the position that all gender affirming services for individuals with gender dysphoria (GD) constitute medically necessary treatment.
Response: The Department disagrees, and contends that individuals with GD, like anyone else, may in some instances desire to change their appearance for purely cosmetic reasons, and not for the purpose of treating their GD. For example, an individual with GD who has received medically necessary treatment and has successfully transitioned to the opposite gender, may nevertheless wish to undergo additional procedures, not because it is necessary to address the symptoms of their GD, but simply to enhance their appearance. The Medicaid program is limited to paying for medically necessary care, and thus cannot pay for procedures whose purpose is not medical but cosmetic. No changes were made to the proposed regulation as a result of this comment.
Comment: Some commenters contended that the proposed amendment imposes a stricter standard for obtaining prior approval of the procedures listed in § 505.2(l)(5) to treat GD than is applied to the same procedures when used to treat other conditions or diagnoses. As support for this contention, they pointed to: the proposed regulatory presumption that these services are cosmetic; and the fact that the regulation defines cosmetic procedures as those “performed solely for the purpose of improving an individual’s appearance”, while in other contexts cosmetic procedures are described as those “provided only because of the enrollee’s personal preference”.
Response: As always, it is the Department’s intent only to ensure that Medicaid pays for medically necessary care, services, and supplies. No change was made to the proposed regulation as a result of this comment, but the Department will take it under advisement, and will consider whether the presumption language should be eliminated or modified in a subsequent rulemaking, in order to dispel any misconception that the Department is setting a stricter standard for coverage of these procedures in the context of transgender care.
Comment: Some commenters urged the Department to eliminate what they referred to as the list of “exclusions” in the regulation.
Response: The services listed in § 505.2(l)(5) are not excluded from coverage. They will be covered if medically necessary and prior approval is received. Nevertheless, the Department will consider whether specifying in the regulation procedures that are subject to prior approval is contributing to the misconception that a stricter standard is being set for coverage of these procedures in the context of transgender care. If the Department decides to omit the list from the regulation, it will do so in a subsequent rulemaking.
Comment: A number of comments addressed topics outside of the scope of the proposed amendments, including the current limitation on coverage of hormone therapy and gender reassignment surgery (GRS) to individuals 18 years of age or older, and the types of practitioners who can provide referral letters for GRS.
Response: Because these comments do not pertain to the amendments proposed in the current rulemaking, no changes were made in response to these comments. However, the Department is considering these comments outside the context of the current rulemaking, and if the Department determines policy changes are advisable, it will address them in a separate rulemaking.
