MaineCare to cover transgender procedures

On Jun. 18, 2019, the Maine Department of Health and Human Services (DHHS) released an emergency ruling which “eliminates transsexual procedures from the list of non-covered services in Section 90.07. Elimination of this prohibition on transsexual medical procedures complies with Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs and activities.”

The shift went into effect Sept. 16. According to the emergency ruling document, the change was made to “avoid an immediate threat to public health, safety, or general welfare by immediately removing the access barrier for transgender individuals that the current language creates. The Department is promptly following this emergency rulemaking with proposed rulemaking.”

In an email to the Echo, DHHS Communications Director for the Maine Jackie Farwell described the Department’s role in “promoting health, safety, resilience, and opportunity for Maine people. The Department provides health and social services to approximately a third of the state’s population, including children, families, older Mainers, and individuals with disabilities, mental illness and substance use disorders.

Farwell explained the legal basis for the decision: “Section 1557 of the Affordable Care Act prohibits sex discrimination in Medicaid. The courts have consistently found that federal sex discrimination laws, including this Section, prohibit discrimination against transgender people. Before this change, Maine was one of only eight states left in the nation that maintained or enforced broad exclusions of transition-related health care in its Medicaid program.”

Indeed, the Portland Press Herald reports that 22 other states cover transition-related health care through their Medicaid programs.

Waterville Mayor Nick Isgro has vocalized his opposition to this decision. In response to a recent Facebook post about this announcement, Isgro stated “So we get to pay for people to mutilate their genitals? Great.”

Despite the subsequent deletion of this comment, Isgro stood by his statement in a recent email to the Echo.

“While the comment was tongue in cheek there is a serious undertone,” Isgro stated. “Gender dysphoria is a serious condition that leads to higher rates of depression and suicide, and now we are seeing the stories of post-sex reassignment regrets only compounding these issues. We should be working to help these people but to do so we need a much deeper understanding than our current climate is giving the issue.” 

Elaborating on the emergency ruling document’s promise to supplement the ruling with rulemaking, Farwell wrote that “ Under the emergency rulemaking process, we eliminated transsexual procedures from the list of non-covered services under MaineCare. The Department then pursued regular rulemaking to implement this change, including establishing criteria for covered services.”

These legal changes can be found in MaineCare Benefits Manual in Chapter II, Section 90, Physician Services. The section includes the “Addition of transgender services (90.04-33) under Covered Services to identify coverage for medically necessary procedures. The Department had proposed to put this provision under Restricted Services, requiring prior authorization. In response to comments, the Department moved this provision to the covered services section so that prior authorization is not required for these non-surgical services.”

This section also includes the “Addition of (90.05-1 A (4)) Gender Dysphoria Related Surgeries to identify coverage for surgeries for the treatment of gender dysphoria. Commenters agreed that prior authorization should be required for surgeries.”

Farwell concluded that “Transgender people with MaineCare now have access to needed health care. This prohibition against coverage was discriminatory, incompliant with the Affordable Care Act, and out of alignment with most other states. We are pleased to take this important step towards more equitable health coverage for all Mainers.”