Insurance Circular Letter No. 13 (2020)
June 28, 2020
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TO: |
All Insurers Authorized to Write Accident and Health Insurance in New York State, Article 43 Corporations, Health Maintenance Organizations, Student Health Plans Certified Pursuant to Insurance Law § 1124, and Municipal Cooperative Health Benefit Plans |
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RE: |
Discrimination Based on Sexual Orientation, Gender Identity or Expression, and Transgender Status and Coverage for Preventive Care and Screenings |
STATUTORY AND REGULATORY REFERENCES: N.Y. Insurance Law §§ 2607, 3216, 3221, 3243, 4303, 4330, and Article 49; N.Y. Public Health Law Article 49; 11 NYCRR 52 (Insurance Regulation 62) and 11 NYCRR 56 (Insurance Regulation 183)
I. Purpose
As the federal government has taken action to remove protections prohibiting discrimination based on sexual orientation, gender identity or expression, or transgender status, the Department of Financial Services (the “Department”) continues to codify protections to ensure that all New Yorkers are protected. The Department recently adopted §§ 52.75 and 52.76 of 11 NYCRR 52 (Insurance Regulation 62), which prohibit discrimination based on sexual orientation, gender identity or expression, and transgender status and clarify coverage for preventive care and screenings.
This circular letter reminds insurers authorized to write accident and health insurance in New York State, Article 43 corporations, health maintenance organizations, student health plans certified pursuant to Insurance Law § 1124, and municipal cooperative health benefit plans (collectively, “issuers”) of the requirements related to non-discrimination protections based on sexual orientation, gender identity or expression, and transgender status and the requirements pertaining to preventive care and screenings.
II. Prior State Action Prohibiting Discrimination Based on Sexual Orientation, Gender Identity or Expression, or Transgender Status
New York has taken action to prohibit discrimination based on sexual orientation, gender identity or expression, and transgender status in relation to insurance. Insurance Law § 2607, as amended by Subpart D of Part J of Chapter 57 of the Laws of 2019, prohibits all issuers from refusing to issue an insurance policy or contract, or from canceling or declining to renew such policy or contract, because of the sex or marital status of the applicant or policyholder. Subpart D amended Insurance Law § 2607 to specifically define “sex” to include sexual orientation, gender identity or expression, and transgender status.
Further, Subpart D of Part J of Chapter 57 added new Insurance Law §§ 3243 and 4330, which prohibit discrimination in health insurance policies or contracts because of sex, marital status, or based on pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions. This includes making any distinction or discrimination between persons as to the premiums charged for a policy or contract; demanding or requiring a greater premium than the issuer requires at that time for similar insureds; making or requiring any rebate, discrimination or discount upon the amount to be paid or the service to be rendered on any policy or contract; inserting in the policy or contract any condition or making a stipulation whereby the insured is bound to accept any sum less than the full value or amount of such policy or contract in case of a claim thereon except where such conditions are imposed upon others in similar cases; rejecting any application for a policy or contract; canceling or refusing to issue, renew or sell a policy or contract after appropriate application; fixing any lower rate or discriminating in the fees or commissions of insurance agents or brokers for writing or renewing such a policy or contract; or engaging in sexual stereotyping. Insurance Law §§ 3243 and 4330 similarly provide that “sex” includes sexual orientation, gender identity or expression, and transgender status.
Additionally, 11 NYCRR § 52.72 prohibits issuers from discriminating based on several factors, including sex. Section 52.72(c)(2) provides that discrimination based on sex includes discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy or recovery therefrom, childbirth or related medical conditions, sex stereotyping, sexual orientation, gender identity or expression, and transgender status. The regulation applies to individual, small group, and large group accident and health insurance policies and contracts that provide hospital, surgical, or medical expense coverage, as well as student accident and health insurance policies.
III. Prohibitions on Discrimination Based on Sexual Orientation, Gender Identity or Expression, and Transgender Status
The Department recently adopted 11 NYCRR § 52.75, which prohibits discrimination based on sexual orientation, gender identity or expression, and transgender status. This amendment is effective July 28, 2020 and applies to polices and contracts issued, renewed, or amended on or after that date. This rule provides that in addition to the prohibitions against discrimination set forth in § 52.72, an issuer shall not discriminate based on an insured’s or prospective insured’s actual or perceived sexual orientation, gender identity or expression, or transgender status. This regulation applies to individual, small group, and large group accident and health insurance policies and contracts that provide hospital, surgical, or medical expense coverage, as well as student accident and health insurance policies.
Section 52.75(a)(1) provides that discrimination prohibited by § 52.75 includes a policy or contract clause that purports to deny, limit, or exclude coverage based on an insured’s sexual orientation, gender identity or expression, or transgender status. Policy or contract exclusions prohibited by this regulation include exclusions for treatments related to gender transition, gender dysphoria, or gender incongruence. The Department will not approve policy or contract form language that purports to exclude specific treatments related to gender transition, gender dysphoria, or gender incongruence.
Section 52.75(a)(2) provides that discrimination prohibited by § 52.75 includes denying, limiting, or otherwise excluding medically necessary services or treatment otherwise covered by a policy or contract on the basis that the treatment is for gender dysphoria. An issuer must provide an insured with the utilization review appeal rights required by Insurance Law and Public Health Law Articles 49 for gender dysphoria treatment that is denied based on medical necessity. Exclusions are not permitted for specific care or treatment unless such exclusions are permitted under § 52.16(c). While § 52.16(c) permits an exclusion for cosmetic surgery, any denial of a service as cosmetic is a medical necessity denial, as set forth in § 56.0 and subject to internal and external appeal rights under Insurance Law and Public Health Law Articles 49. Thus, an issuer may not deny a specific procedure to treat gender dysphoria on the basis that such procedure is deemed always cosmetic or experimental or investigational for all insureds without conducting an internal review and providing external appeal rights. An issuer must review an insured’s request for treatment according to its utilization review plan and make a determination specific to the insured’s case, providing notice of an adverse determination that includes the reasons for the determination and the clinical rationale. If an issuer denies a service, it must do so in accordance with Insurance Law and Public Health Law Articles 49, with the right to have such denial reviewed by an independent external appeal agent.
Further, § 52.75(a)(3) provides that discrimination prohibited by § 52.75 include designating an insured’s sexual orientation, gender identity or expression, or transgender status as a pre-existing condition for the purpose of denying, limiting, or excluding coverage. This prohibition also applies to designating gender dysphoria or comparable medical diagnoses as a pre-existing condition. Issuers are reminded that Insurance Law §§ 3232, 3242(b), 4318, and 4328(b)(5) prohibit an individual or group policy or contract of hospital, medical, surgical, or prescription drug expense insurance, including student accident and health insurance, from imposing a pre‑existing condition exclusion. This prohibition would not permit an issuer to designate an insured’s sexual orientation, gender identity or expression, or transgender status, including gender dysphoria or comparable medical diagnoses, as a pre-existing condition for the purpose of denying, limiting, or excluding coverage.
Finally, § 52.75(a)(3) provides that discrimination prohibited by § 52.75 includes denying a claim from an insured of one gender or sex for a service that is typically or exclusively provided to an individual of another gender or sex unless the issuer has taken reasonable steps, including requesting additional information, to determine whether the insured is eligible for the services prior to denial of such claim. Issuers are prohibited from automatically denying claims for transgender individuals because the gender or sex with which the individual identifies does not match the gender or sex of someone to whom those services are typically provided.
IV. Categorical Exclusions for Gender Affirming Care in Clinical Review Criteria
As explained in Insurance Circular Letter No. 13 (2019), Chapter 57 of the Laws of 2019 requires utilization review agents who are reviewing mental health treatment for purposes of health insurance coverage to use evidence-based and peer-reviewed clinical review criteria that are appropriate to the patient’s age and are deemed appropriate and approved by the Commissioner of the Office of Mental Health (“OMH”), in consultation with the Commissioner of Health and the Superintendent of Financial Services. As part of that review, OMH is reviewing the clinical review criteria related to gender dysphoria. OMH will not approve clinical review criteria that include categorical exclusions of any gender-affirming treatments, as such exclusions are prohibited by state law and regulations prohibiting discrimination against transgender individuals.
V. Gender Designation for Comprehensive Health Insurance
The New York State Department of Health recently made a non-binary gender designation (“Gender X”) available for birth certificates issued by New York State. This gender marker is already available for birth certificates issued by New York City and on identity documents in many other states. Since insureds may legally designate their gender as Gender X on their birth certificates across New York State, issuers of comprehensive health insurance should implement any necessary changes to accommodate a designation of Gender X. This non-binary gender designation respects New Yorkers who do not identify as male or female and aligns with Insurance Law §§ 2607, 3243, and 4330 as well as 11 NYCRR §§ 52.72 and 52.75 to prohibit discrimination based on gender identity or expression.
VI. Clarifying Coverage of Preventive Care and Screenings
Insurance Law §§ 3216(i)(17)(E), 3221(l)(8)(E) and (F), and 4303(j)(3) require issuers that deliver or issue for delivery an insurance policy or contract in New York providing hospital, surgical, or medical care coverage, except for a grandfathered health plan,[1] to provide coverage for preventive care and screenings at no cost-sharing. The Insurance Law requires that issuers provide coverage without cost-sharing for: (1) evidence-based care and screenings with an “A” or “B” rating in the current recommendations of the United States Preventive Services Task Force; (2) immunizations that have in effect a recommendation from the advisory Committee on Immunization Practices at the Centers for Disease Control; (3) for children including infants and adolescents, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration (“HRSA”); and (4) for women, additional preventive care and screenings as provided for in comprehensive guidelines supported by HRSA.
Section 52.76(a)(1) of 11 NYCRR reminds issuers of the existing requirements to provide coverage for preventive care and screenings, including coverage for preexposure prophylaxis with effective antiretroviral therapy for persons who are at high risk of HIV acquisition, without cost-sharing.[2] Section 52.76(a)(2) further clarifies that an issuer must update coverage requirements for preventive care and screenings upon any policy or contract issuance or renewal that occurs six months after the date the recommendation or guideline is issued or revised. Lastly, § 52.76(a)(3) reminds issuers that they must provide coverage for the preventive care or screening through the end of the policy or contract year even if the recommendation or guideline changes during the policy or contract year.
VII. Conclusion
Regardless of actions at the federal level to erode protections for individuals based on sexual orientation, gender identity or expression, or transgender status, New York State law and regulation continues to prohibit issuers from discriminating against individuals based on sexual orientation, gender identity or expression, or transgender status. The Department will monitor compliance with these non-discrimination requirements, including during market conduct exams. The Department will take action against an issuer for any failure to adhere to all statutory and regulatory prohibitions against discrimination.
Please direct any questions regarding this circular letter to Colleen Rumsey, Supervising Attorney, Health Bureau, by email at [email protected].
Very truly yours,
Lisette Johnson
Chief, Health Bureau
[1] A “grandfathered health plan” means coverage provided by an issuer in which an individual was enrolled on March 23, 2010, for as long as the coverage maintains grandfathered status in accordance with 42 U.S.C § 18011(e). Ins. Law §§ 3216(i)(17)(F), 3221(l)(8)(G), and 4303(j)(4).
[2] See Supplement No. 1 to Insurance Circular Letter No. 21 (2017), issued on July 23, 2019, for a discussion on coverage requirements for preexposure prophylaxis with effective antiretroviral therapy for persons who are at high risk of HIV acquisition.