Action Alert: 8 days to help stop one of Trump/Musk's attacks on transgender folks

 

I wrote about this issue a few days ago as part of an overview of the various Biden-era ACA policies which the Musk/Trump regime is reversing:

• CMS proposes a policy that would add sex-trait modification to the list of items and services that may not be covered as essential health benefits beginning in plan year 2026.

In other words, they're throwing transgender folks under the bus, which is hardly surprising but is still appalling; I'll have a separate writeup about this soon. It doesn't mean that insurance carriers can't cover gender-affirming services, but it does mean those services can't have APTC subsidies applied towards them if they're included in the policy.

As promised, I'm posting a separate entry focusing on it. Fortunately, Lil Kalish has already done a much deeper dive over at Huffington Post which saves me most of the trouble:

The Trump administration has quietly proposed a rule that would remove requirements that insurance providers must cover gender-affirming care as essential care on health insurance plans created by the Affordable Care Act. The practical effect would be that fewer plans would cover such care, while some states would have to shoulder the financial burden.

...But the proposed policy change on coverage for gender-affirming care is the first hint that the Trump administration is coming for the health care of transgender adults. Already, the Trump administration has attempted to roll back many protections for transgender people in all aspects of life. In his first few weeks in office, Trump signed a flurry of executive orders that have wrought havoc on trans peoples’ access to gender-affirming care, education, athletics and the military, and reshaped the flow of federal funding that buoys essential programs for transgender youth and adults.

The ACA requires that all individual and small group market healthcare policies have to cover a list of ten "Essential Health Benefits" (EHBs) such as hospitalization, emergency care, pediatric care, surgery, prenatal/maternity care and so on. Within those general categories, however, there's some amount of discretion for both the HHS Secretary as well as each state to define more specific parameters of what services must be covered as EHBs...and which ones can't be covered as EHBs.

If a service isn't defined as an EHB, the insurance carrier can still generally include coverage of it in a policy (with some exceptions depending on the state). However, federal subsidies (aka Advance Premium Tax Credits (APTCs)) won't cover that portion of the premium.

Let's say the carrier prices "gender affirming care" at $1/month on a $500/month policy. An enrollee who qualifies for $500/mo in APTC would still have to pay that last $1/month for the gender-affirming care (GAC) portion of the policy.

This may not sound like a big deal for most people...except that even a nominal cost can still be a substantial burden for very low-income folks, and more to the point, since so few people require GAC, very few if any insurance carriers will bother including it at all if they're no longer legally required to do so.

And of course if insurance carriers don't offer coverage even as a separate rider, that means transgender folks would have to pay full price, which can run thousands or even tens of thousands of dollars...and preventing them from getting healthcare is exactly the point of the new policy.

The law also includes a nondiscrimination provision, known as Section 1557, which protects patients against discrimination on the basis of sex in health care settings. Former presidents Obama and Joe Biden updated the guidance to include nondiscrimination protections for gender identity, but in both terms, Trump rescinded this guidance. Most recently, his administration removed the phrase “gender identity,” in a broad effort to align agencies across the government with Trump’s executive order declaring there are “only two sexes, male and female.”

There's another twist as well:

...Currently five states — Colorado, California, New Mexico, Vermont and Washington — include coverage of gender-affirming care as part of their state’s essential health benefits benchmark plans. A total of 24 states and Washington, D.C., explicitly cover the care in state insurance plans.

...But if this proposed rule is implemented, advocates say that the future of access to puberty blockers, hormone therapy and surgery on public plans could be in jeopardy. Plans could stop covering the benefits, and some states might choose to shoulder the costs of this coverage on their own, thereby raising the costs of health plans for consumers.

Also, while it's true that relatively few people require GAC, in a way that's kind of the point:

The proposal alleges that employers often do not cover gender-affirming care because few people use the benefit. In reality, transgender adults face numerous barriers to accessing insurance. Trans adults are more likely to be uninsured and report household incomes of less than $20,000 compared to cisgender adults.

Last year, HHS estimated that more than 45 million people were enrolled in a plan covered by the ACA. One estimate by the Williams Institute found that trans people make up 0.6% of the population, which could mean that at least 270,000 people could lose access to coverage for gender-affirming care.

There's also another ugly twist to how the Musk/Trump Admin is rolling this new policy change out, which gets to the heart of this post:

...But Simmons said the administration’s quiet and faster-than-usual rollout of the proposed rule could signal that the administration is hoping to change policy without much oversight.

Under the Administrative Procedures Act, federal agencies are required to follow certain standards for formal rulemaking, which includes allowing the public to provide comments within 60 days of publishing the proposed rule. Agencies then review public comment and issue a final rule that goes into effect thereafter.

However, this proposed rule was first released by CMS on March 10 before it was published on the Federal Register, where the government announces changes to rules, regulations and policies, on March 19. Normally the clock starts running for people to submit public comments once the rule has been published. But the agency has given the public until April 11 to voice their opinions about the proposed rule — an expedited timeline without any explanation.

In other words, they're trying to push this through quickly before the public is able to push back against it.

Here's the link to submit a comment about the proposed rule.

On Bluesky, there's a thread which offers some tips on how to submit your comment:

this rule has to run the federal rulemaking gamut—it needs to be open for public comment & the govt is required to respond. even if this admin responds "lol," the rule will almost certainly face multiple court challenges—from the ACLU to class actions to whole states. public opinion matters.

And if you're like "but trump doesn't listen to courts" or "it'll eventually pass," i have this to say: every single day a trans person can access the lifesaving, essential healthcare they need is worth fighting for. it's worth court battles & protests & especially 2 minutes of your time.

Trans people deserve healthcare. full stop. trans care is essential & lifesaving. full stop. trans care requires more than just trans folks standing for the right to access it. you can be brief, but be specific. this isn't a "spam the form" sitch. a comment can be anonymous if you need that.

Some folks have also been confused about what to select in the "what is your comment about?" dropdown. "individual" works fine, unless another option better suits you. bureaucracy's designed, in part, to confuse you. don't let a form stop you. this proposed rule is bigotry. tell them.

One more thing (for now): be specific, but don't be personal in a way that endangers anyone. trans people are at risk rn. you might have a trans loved one; you don't have a trans nephew.

DON'T OUT ANYONE. DON'T OUT YOURSELF. keep your distance but don't look like you're keeping your distance.

Again, we only have until April 11th.