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Agency of Human Services Medicaid Policy Unit 280 State Drive, Center Building Waterbury, Vermont 05671-1000 July 12, 2019

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Agency of Human Services Medicaid Policy Unit 280 State Drive, Center Building Waterbury, Vermont 05671-1000 July 12, 2019 State of Vermont For consumer assistance: Department of Financial Regulation [Banking] 888-568-4547 89 Main Street [Insurance] 800-964- 1784 Montpelier, VT 05620-3101 [Securities] 877-550-3907 www.dfr.vermont.gov Agency of Human Services Medicaid Policy Unit 280 State Drive, Center Building Waterbury, Vermont 05671-1000 July 12, 2019 Dear members of the Medicaid Policy Unit: The Vermont Department of Financial Regulation supports proposed rule HCAR 4.238, regarding gender affirmation surgery for the treatment of gender dysphoria. The proposed rule contains important updates to Medicaid coverage requirements for gender affirmation surgery that would help prevent discrimination on the basis of gender identity, increase access to medically necessary services for lower income Vermonters, and protect Vermont’s LGBTQ+ youth. Vermont law prohibits discrimination based on “an individual’s actual or perceived gender identity, or gender-related characteristics intrinsically related to an individual’s gender or gender identity, regardless of the individual’s assigned sex at birth.”1 Proposed rule HCAR 4.238 would update clinical criteria and expand Medicaid coverage of gender affirmation surgery for the treatment of gender dysphoria when medically necessary and developmentally appropriate, including by allowing individuals under age 21 to access to such services. These changes better align not only with Vermont’s anti-discrimination statute, but with DFR’s recent guidance for private insurers regarding medically necessary gender affirmation surgery. On June 12, the Department issued Insurance Bulletin #174, which clarifies that, under existing law, insurance companies, nonprofit hospital and medical services corporations, non-ERISA employer group plans, and managed care organizations shall not exclude coverage for medically necessary gender affirmation surgery for gender dysphoria or deny such coverage on the basis of age. By updating Medicaid coverage requirements, proposed rule HCAR 4.238 would help 1 1 V.S.A. § 144 ensure that medically necessary gender affirmation surgery is available to all Vermonters, whether they are covered by Medicaid or a private insurance policy. The Department appreciates the opportunity to comment on proposed rule HCAR 4.238. Please do not hesitate to contact me if you have questions or require additional information. Sincerely, Michael S. Pieciak, Commissioner VERMONT LEGAL AID, INC. 264 NORTH WINOOSKI AVE. OFFICES: BURLINGTON, VERMONT 05401 OFFICES: (802) 863-5620 (VOICE AND TTY) BURLINGTON FAX (802) 863-7152 MONTPELIER RUTLAND (800) 747-5022 SPRINGFIELD ST. JOHNSBURY By email to: [email protected] July 17, 2019 Ashley Berliner, Director of Healthcare Policy and Planning Agency of Human Services 280 State Drive, Center Building Waterbury, VT 05671-1000 Re: Comments on HCAR 4.238 Gender Affirmation Surgery for the Treatment of Gender Dysphoria Dear Ashley Berliner, Thank you for the opportunity to provide written comments on AHS’ proposed rule, “Gender Affirmation Surgery for the Treatment of Gender Dysphoria.” Vermont Legal Aid (VLA) submits the following comments in response to the proposed rule. 4.238.5 (a) (1) Conditions for Coverage AHS proposed language: 4.238.5 Conditions for Coverage (a) For a beneficiary to receive coverage for gender affirmation surgery, the following conditions must be met: (1) Written clinical evaluation documenting eligibility and medical necessity from qualified mental health professional(s): (A) For breast surgery, a written clinical evaluation must be submitted by one qualified mental health professional. (B) For genital surgery, two written clinical evaluations must be submitted by two separate qualified mental health professionals. The first referral should be from the individual’s treating qualified mental health professional, and the second referral may be from a person who has only had an evaluative role with the individual. (C) A written clinical evaluation by a qualified mental health professional will include at a minimum: (i) A diagnosis of persistent gender dysphoria, with demonstrated: (1) Participation in a treatment plan in consolidating gender identity, and (2) Participation in addressing interpersonal issues as part of a treatment plan, (ii) Diagnosis and treatment of any co-morbid conditions, (iii) Counseling of treatment options and implications, (iv) Psychotherapy, if indicated, (v) Formal recommendation of readiness for surgical treatment, documented in a letter that includes: (1) Documentation of all diagnoses, (2) Duration of professional relationship and type of therapy, (3) Rationale for surgery, and (4) follow-up treatment plan. Comment: VLA is concerned that the “written clinical evaluation” comprises an onerous barrier to accessing this care. In the past five years, we have more than 50 cases with clients seeking gender affirming surgery. In over 50 cases, we have seen zero “written clinical evaluations.” Instead, providers have provided effective “referral letters” (World Professional Association for Transgender Health (WPATH) Standards of Care) as well as “letters of reference” (the current Medicaid policy language) and “letters of support.” Clinical “evaluations,” in the language of health care, typically include an hours-long, arms- length assessment process by a qualified professional using a standardized tool or questionnaire that results in a structured product with assessment under the criteria. The format of an evaluation is onerous and will pose a barrier to qualified mental health professionals who are otherwise informed and supportive and ready to write a “letter of support.” We understand that Vermont Medicaid is concerned that letters of support do not contain sufficient information about the whether the treatment professional has met and assessed the patient. That concern could be addressed by explicitly requiring that the written clinical letters of support include that assurance. Instead, we propose the language be change to “Written clinical letters of support documenting eligibility and medical necessity from qualified mental health professional(s)” The “letter of support” can have the same content. VLA is concerned that providers will be unwilling to complete a lengthy evaluation and this will pose a barrier to patients accessing this care. 4.238.7 Non-Covered Services We are concerned by the list of “non-covered services.” We recommend eliminating or substantially scaling back the “non-covered services” list, and instead simply noting that cosmetic procedures (as defined in HCAR 4.104 Medicaid Non-Covered Services) will not be covered. This allows for a case-by-case analysis to ensure coverage of medically necessary care that some people need, such as facial feminization surgery, while at the same time making it clear that procedures that “change a beneficiary’s appearance but are not medically necessary to treat the patient’s underlying gender dysphoria” will not be covered. Procedures on the non-covered services list are medically necessary for the treatment of gender dysphoria in some Medicaid beneficiaries. For example, while electrolysis is cosmetic for some people, it is medically necessary for the treatment of gender dysphoria in other individuals, particularly as preparation for medically necessary genital or chest surgery. Medicaid beneficiaries may be barred from accessing this covered genital or chest surgery for gender dysphoria if the prerequisite electrolysis for these services is excluded with a non-covered services list. This case-by-case analysis is consistent with WPATH Standards of Care and with Medicaid’s coverage of medically necessary treatment. 4.238 (overall) Comment: Finally, VLA would like to take this opportunity to note our overall support for many pieces of this rule. We appreciate the work to align this rule with current gender affirmation surgery best practices and medical knowledge, including WPATH Standard of Care. It also removes many unnecessary barriers to receiving medically necessary services for Medicaid beneficiaries with gender dysphoria. We are particularly grateful that DVHA’s proposed rule does not require “Progress in dealing with work, family, and interpersonal issues resulting in improved mental health.” This requirement did not accurately assess whether gender affirmation surgery is medically necessary. Many Medicaid beneficiaries with and without gender dysphoria have unresolved work, family, and/or interpersonal issues, yet continue to require and receive other necessary medical treatment. The following additional requirements and limitations, which are present in the Gender Reassignment Surgery policy dated November 16, 2016, are eliminated in the current draft of rule 2.238. These eliminations will have a significant positive impact on Medicaid beneficiaries with gender dysphoria: the age limit the doctorate degree requirement, the breast development limit the photograph requirement the substance abuse treatment success requirement the education of family members and significant others requirement the hormone therapy 24 month requirement for genital surgeries and mastectomy The current draft of rule 4.238 includes many significant improvements in assessing medical necessity for gender affirming surgery. Thank you for the opportunity to submit additional comments on this rule draft. Sincerely, Vermont Legal Aid s\ Mike Fisher, Chief Health Care Advocate s\ Barb Prine, Staff Attorney s\ Amelia Schlossberg, Health Care Communications Coordinator July
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