FAQ regarding Medicare and sex reassignment surgery

Post Reply New Topic

Complaint No. 1: I don't want my money going toward that!

First off, it's not your money, but rather the country's money. Second, you pay taxes levied by the law and fees levied by the law and regulations. Third, money is appropriated according to the law and regulations. We are not a direct democracy, mob rule, but live under the rule of law.

Complaint No. 2: It's insanity that Medicare is paying for sex reassignment surgery (SRS)!

How much do you actually know about SRS? In this case, due process was followed whereupon an aggrieved party seeking SRS, which her doctors made clear was necessary to treat her gender dysphoria/gender identity disorder, ran into a categorical exclusion in the form of a National Coverage Determination (NCD) first determined in 1981 and published in the Federal Register in 1989. She filed an Acceptable NCD Complaint last year, arguing that the evidence base was inadequate to support the NCD; the Appellate Division of the Departmental Appeals Board (DAB), part of the U.S. Department of Health and Human Services (HHS) heard her case and agreed, and then went onto discovery. After discovery, it found that the categorical exclusion was invalid according to the law and the regulations as applied to the evidence. It is notable that the defendant in this case, the Centers for Medicare and Medicaid Services (CMS), did not defend its exclusion, perhaps because it found the exclusion indefensible: Like how many states' attorneys-general have not been defending their states' same-sex marriage bans in court, because they found their bans to be indefensible as well. Under the law and regulations, the DAB found that the exclusion could not stand.

Now coverage will be determined on a case-by-case basis and the patient and doctors will still need to demonstrate medical necessity. How is that insane? If it's medically necessary, then why shouldn't it be covered?

Complaint No. 3: We've got so many other problems to deal with, like veterans who aren't getting the treatment they need, the deficit, children not getting dental coverage, children suffering and dying of cancer, etc.!

I agree. Those are all issues we need to work on, but how were they relevant to the case that was before the DAB? Veterans' Affairs (VA) is a wholly separate government department from HHS, so why would the DAB, part of HHS, rule on VA matters? The priorities of the DAB, like any administrative court or any court for that matter, are the cases before it. The DAB can do nothing about these matters unless there is a case in front of it. In this case, it was sex reassignment surgery and, applying the law and the regulations to the evidence presented before them, found that the categorical exclusion of SRS was unjustified, so there are going to be cases where Medicare funds will go toward SRS.

Complaint No. 4: Couldn't the DAB have just said, "We have all these other problems to deal with, so let us not consider this case before us. Let's just keep SRS excluded till all these other problems are settled"?

Now you are stepping into absurdity. The DAB couldn't have just said that, because it would not be in accordance with the law and the regulations, or due process, for that matter. Again, the DAB's priorities are the cases that come before it: It holds no power beyond HHS.

Complaint No. 5: Well, we'll just get Congress to pass a law banning the use of federal funds for SRS!

That's pretty petty. We just went through due process and in that process found that we were unjustifiably denying people medically necessary treatment and now you wanna override it with politicians? The trans community will see any such act as being born out of pure animosity towards us, taking conscious steps to prevent treatment of our illnesses. And besides, how would passing such a law help with all those other priorities, anyway?