Court Invalidates Revised Final Rule on Gender Dysphoria Treatment

A federal judge has declared HHS’s adjustments to Section 1557 related to gender dysphoria and transition are not valid.  Since 2016, Section 1557 has required many plans to avoid having a categorical exclusion for medically necessary treatment for gender dysphoria and transition services.  Some courts had declared those rules invalid in late 2016 and reinforced that view in late 2019, so it has been unenforceable for some time and HHS was attempting to remove the language struck down by courts.

However, regardless what Section 1557 may or may not stipulate, plans nationwide that have denied gender dysphoria treatment or gender transition services have been losing in court for years now under Title VII civil rights protections when an employee claims the benefit denial was discriminatory on the basis of sex.  This summer, the US Supreme Court agreed with all those court decisions that gender identity and orientation are part of the Title VII protections of employment and benefits.

At this point, any plans hoping to retain a categorical exclusion of such services should seek counsel to ensure they have a legal defense to do so.

 

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.

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