FAYETTEVILLE -- Two years ago, the University of Arkansas System halted employee health care plan coverage of hormone treatments and gender-reassignment surgeries for its transgender workers.
The decision meant Kacee Sparks, a UA-Fayetteville mailroom worker and student, had to bear the cost when she began taking doctor-prescribed hormone treatments. Sparks, a transgender woman, called the treatments "a complete life changer," crediting them with lifting her from a deep depression.
"I would say that they're essential and absolutely necessary," Sparks said.
Now a federal court case in Texas is set to resume this year after a lengthy delay, the same case cited by the UA System in 2017 in its decision to drop coverage that had been offered for only a few months. The case in Texas involves a legal challenge to a 2016 federal rule applied to the nondiscrimination provision in the Patient Protection and Affordable Care Act.
Not every employer saw the case in Texas the same way as the UA System did. The University of Missouri System provides coverage for treatments related to what's known medically as gender dysphoria, a spokesman said. The Texas A&M University System excludes gender-reassignment surgery "unless based on medical necessity and in conjunction with a diagnosis of gender dysphoria," its plan document states, and hormone treatments, if medically necessary, also are covered, a spokesman said.
But the UA System has hardly been alone among public entities in declining to cover the treatments for transgender employees, with the exclusion also listed in health plan documents for other state employees in Arkansas -- as well as in plan documents for state employees in Tennessee and Mississippi.
UA System President Donald Bobbitt outlined reasons for the system's decision in a November letter written to Sparks, which she provided to the Arkansas Democrat-Gazette. Bobbitt wrote in response to a letter from Sparks questioning the exclusion. Bobbitt, in a two-page letter, cited the Affordable Care Act and an order by the judge in the Texas case.
"To say that participants and plan administrators alike have felt whipsawed by this and other changing interpretations of [the Affordable Care Act] is an understatement. These changes and issues are particularly challenging for public plans which serve hugely diverse member populations," Bobbitt wrote.
Bobbitt wrote that the UA System "operates within all applicable federal and state regulations and meets all [Affordable Care Act] qualified plan compliance requirements."
The regulations and requirements remain far from settled, however, and not only because of the pending Texas court case. Transgender workers in Wisconsin -- both in jobs associated with the University of Wisconsin -- last year scored a legal victory in federal district court after challenging the exclusion listed in a health plan for state employees.
The regulations themselves also could be rewritten under the administration of President Donald Trump. In October, The New York Times reported on a draft plan to create a new legal definition of gender to say it is determined by genitalia at birth, with the news drawing fierce opposition from advocacy groups.
The UA System first began offering coverage for gender dysphoria treatments after a final rule related to nondiscrimination was issued by the federal Department of Health and Human Services, "late in calendar year 2016," Bobbitt wrote in his letter.
The department's website describes the rule as, in part, a prohibition "against discrimination on the basis of gender identity."
But in December 2016, a judge's order in the federal case in Texas blocked the department's Office for Civil Rights from enforcing a prohibition against discrimination on the basis of gender identity, the department's website states.
"With that ruling (and with the ongoing challenges and modifications to the ACA) and considering the long-term plans-of-treatment involved in gender dysphoria, the University, on January 10, 2017, announced the decision to suspend gender dysphoria coverage pending the final legal outcome of the injunction or further clarification of the ACA coverage guidelines," Bobbitt wrote, noting that the UA System's coverage extended through March 6, 2017.
Nate Hinkel, a UA System spokesman, said this month in an email that the UA System's position remains unchanged as "no rulings have been made and the outcome is still uncertain."
Paul Castillo, an attorney with nonprofit advocacy group Lambda Legal, said the judge's order noted by Bobbitt is "certainly not controlling for the state of Arkansas."
Bobbitt, in the letter, went on to describe cost considerations.
"Regardless of my personal opinion on plan design and coverage features, as the administrator of a self-funded group plan I must direct my staff to manage the plan in a financially responsible manner serving the majority needs of our population," Bobbitt wrote, adding that "the reality of health care costs requires plans to make coverage decisions and the reality of group plans is that every request cannot be accommodated."
Bobbitt in his letter said Sparks is "commendable" for sharing personal experiences.
He also wrote: "In no way am I attempting to minimize or lessen the importance and impact on you of the coverage you are requesting, but there are others who feel equally strongly that the plan should provide for additional services specific to their conditions such as less restrictive guidelines for weight loss surgery, expanded inpatient options for wellness and mental health services, pharmacy coverage without formulary restrictions, etc."
Sparks, 26, described Bobbitt's response as "kind of generic": "'We saw your letter, we're not going to do too much.' It's not trying to push toward including trans care." Sparks said she also sent a letter to UA Chancellor Joe Steinmetz, who did not respond.
Her transition "really started" in 2013, she said.
But "I was nervous for my safety and how people would treat me," Sparks said.
Extended bouts of depression meant entire weeks were "completely bleak," she said.
Sparks, a master's student in political science, began getting hormone treatments in May 2018, she said. The treatments, which cost about $30 to $35 per month, help her appear more feminine and "makes me fit more into who I am," Sparks said. She said she's now "in a completely better mental state."
"Being on hormones, getting regular treatment basically makes me a regular person again," Sparks said.
She started her full-time job with the university in January 2017 and relies on the job's tuition discount and other health benefits as she pays about $1,200 yearly for the hormones and related treatment costs, she said.
"I am able to afford that in part because of a Health Savings Account that the university provides, but as for anything else like hair removal, like any major surgeries, there would be no way that I could afford any of that treatment," Sparks said.
For others, "a lot of trans people who face a lot of gender dysphoria, a lot of discrimination -- surgery is basically a lifesaver for them," Sparks said.
She added that "it's not a huge financial burden to include trans-related care."
Hinkel said an analysis done "at least four years ago" found that the estimated annual cost to the plan for covering gender dysphoria treatments would amount to "less than $300,000." Annual insurance expenses in fiscal 2018 were approximately $182.2 million for the UA System, according to a financial statement. The estimated cost would then amount to less than 0.17 percent of the total insurance expenses.
Castillo, with the advocacy group Lambda Legal, said the federal judge in the Wisconsin case called out the economic argument when siding with the workers over the state.
The September 2018 opinion and order by U.S. District Judge William Conley stated that "the court is hard-pressed to find that a reasonable factfinder could conclude that the cost justification was an 'exceedingly persuasive' reason or that this miniscule cost savings would further 'important governmental objectives.'"
Katie Keith, a steering committee member for educational outreach organization Out2Enroll, said that before the rule that is now in dispute, health plan exclusions for gender dysphoria treatments were "very, very common."
Out2Enroll evaluates insurance plans on the individual market, such as those available through healthcare.gov, as opposed to large group plans offered by employers or public entities. Keith said approximately 95 percent of plans for individuals no longer have exclusions for gender dysphoria treatments. She said she did not have full data on large group plans.
Castillo said the pending court case in Texas was delayed for possible new regulations from the federal Health and Human Services Department regarding the nondiscrimination section of the Affordable Care Act, Section 1557.
A Dec. 17 judge's order restarted the case, with arguments expected to start in February and end in May, Castillo said.
Gillian Branstetter, media relations manager for the National Center for Transgender Equality, said in an email that court documents filed by the Department of Health and Human Services in the Texas case state that a new regulation could still come before any final court ruling.
Branstetter, citing the Wisconsin case, said federal judges elsewhere have found that "employers and insurers can still be held liable for ignoring the overwhelming medical and legal consensus that recognizes transition-related care as safe and necessary," citing the Wisconsin case.
Branstetter also cited a December settlement in a case in New York that involved the state's attorney general settling with a health insurer to make sure that gender-reassignment surgery would be covered, and another settlement in December in Washington state.
On Wednesday, a professor at the University of Arizona, Russell Toomey, a transgender man, filed a lawsuit with help from the American Civil Liberties Union that challenges the state's self-funded health plan's exclusion of gender-reassignment surgery.
"Exclusions like these are out of step with the legal and medical consensus on this issue, and reflect the stigma held against transgender people and our health care," Branstetter said.
Metro on 01/27/2019