The board that controls state employee’s health benefits has decided against covering gender identity-related benefits and services, spurring opposition from the LGBTQ community.
The Group Insurance Board made the decision Friday, Dec. 30 at a meeting in Madison. The decision set in place four contingencies that, if met, would eliminate coverage of services and procedures associated with gender reassignment processes, such as sex hormones and sexual counseling services.
Of these four, the first is “a court ruling or an administrative action that enjoins, rescinds or invalidates the rules set by the federal Department of Health and Human Services.” The rules set by HHS in May 2016 determined that health care providers can’t discriminate on the basis of gender identity.
The second is compliance with state law Section 40.03 (6)(c), which bars the GIB from entering “any agreement to modify or expand benefits under any group insurance plan,” unless that modification or expansion is either required by law, or would maintain or reduce premium costs for the state or its employees.
The third contingency is a renegotiation of contracts that maintain or reduce premium costs for the state. The fourth is a final decision by the state DOJ that the exclusion reinstatement does not constitute a breach of the GIB’s fiduciary duties.
Changes that were initially adopted by the GIB to comply with the HHS rule, which also put in place coverage for procedures and supplies related to gender reassignment and sexual transformation, were set to go into effect on Jan. 1. All of these benefits would disappear if the four contingencies are met.
“The state should provide comprehensive health plans for all employees without regard to gender identity, whether the law requires it or not,” said Megin McDonnell, executive director of Fair Wisconsin, an LGBTQ advocacy group. “We disagree with this decision and hope that the board will reconsider these contingencies once again. We will continue to advocate for equal healthcare access that is vital to the well-being of the LGBTQ community.”
Representatives for the state DOJ previously argued against the coverage.
In a DOJ memo sent to the GIB in August, then-deputy attorney general Andy Cook stated that prohibition of discrimination on the basis of “sex” does not include “gender identity,” calling it “an expansion Congress has never adopted and that HHS may not effect on its own.”
“The Board likely need not revise the provision regarding sexual transformation counseling at all,” said Cook. “Since non-transgender patients cannot receive such counseling, no discrimination exists by denying coverage for it.”
Wisconsin is currently a litigant in a federal lawsuit filed in Texas, suing the Obama administration along with 12 other states, claiming that the HHS rules represent an incorrect interpretation of federal law.
See a summary of HHS’s rules on nondescrimination: http://kff.org/disparities-policy/issue-brief/summary-of-hhss-final-rule-on-nondiscrimination-in-health-programs-and-activities/
See the DOJ memo to the GIB (Attachment A): http://etf.wi.gov/boards/agenda-items-2016/gib1230/item3.pdf
–By Alex Moe