Reviewed & edited by Barbara Anderson, LCSW, Ph.D., Eugene Schrang, M.D., Alice Webb, LCSW, D.H.S., and Katrina Rose, Attorney.

This paper started in an interesting manner with a colleague telephoning to confirm I had mailed a recommendation letter. After discussing that case our conversation turned to my outline of this article. For many years in addition to being a community counselor, I have also provided consultation and case management in situations involving federal discrimination questions and community treatment standards.

My caller, Dr. Mildred Brown, author of the book True Selves, said it is "outrageous and tragic that in the year 2000, transsexuals often are forced to live in poverty to pay for medically necessary procedures." She then went on to recount "during 1979, when I attended the first HBIGDA conference at Lake Tahoe, Dr. Pomeroy and I had the same battle with insurance companies." After 21 years it is grossly unjustifiable for insurers to call genital reassignment experimental, particularly given the knowledge and advances in the field.

The topic of insurance-funded genital reassignment raises a variety of questions of interest to transsexual consumers, clinical careproviders and attorneys. How is it that some genital reassignment procedures are paid for by insurance companies and yet the majority of surgeries are not covered and patients must self-pay? What does the phrase "medically necessary" mean and how does it apply to this subject? By what means have transsexuals previously had their surgeries paid for by insurance? And, how is it that Federal courts get pulled into the fray?

For background, insurance companies are first and foremost a money-making business. They operate under the scheme of collecting consumer dollars into a fund, paying careproviders for procedures deemed medically necessary, and finally, paying their business costs and shareholders. To keep costs down insurance companies also create policies which by and large favor saving money. Generally these activities work very well, and the healthy person is comforted with the notion that his or her insurance company will cover necessary medical bills..

Those who typically get lost in this process are persons with relatively uncommon or newly discovered medical conditions or those who need innovative treatments. In such situations insurance company representatives will claim that the policy excludes such procedures in an effort to contain cost. After denying coverage it is hoped the consumer will go away and suffer quietly. The preceding cost savings effort occurs whether the insurer is a corporation or tax-paid government fund such as Medicaid.

One point should not escape your attention. Medical careproviders and the courts tend to agree that only a treating physician can determine what is medically necessary or a required treatment. This explains why the question of insurance-paid genital reassignment surgery keeps appearing in federal courts. In court findings, insurance companies are often told they cannot discriminate against policyholders with legitimate medical needs if they want to be in the insurance racket.

These corporate versus consumer questions are usually looked at in federal court, where matters involving discrimination are typically handled. On the other hand, federal courts are usually less inclined to tell states how to run government insurance programs. This is why the odds of settling out of court against a corporation are more likely, and the odds of winning against a government insurer is slightly less so, if the matter actually ever even makes it into court. Insurance companies and States will make every effort to have a case dismissed or decided upon by the court in a summary judgment process. This is why cases must be prepared meticulously prior to filing.

Are the odds of forcing insurance companies to create policies that favor paying for genital reassignment good? Not over all, although with increased awareness of transsexual persons, individual companies may feel inclined to remove exclusionary clauses if a policyholder, such as if your employer protests. Another question arises. What is the likelihood of a person getting his or her surgery paid by insurance? The answer to this question depends on how well the patient understands the dynamics involved, particularly the preparation of such claims, and how forthcoming that patient's careproviders are in assisting his or her efforts.

If we understand that insurance companies are designed to pay claims only when a procedure is "medically necessary," or may be ordered by the courts to do so when such a condition exists, it then becomes essential that the term "medically necessary" is understood thoroughly. Medically necessity is a term used by medical, insurance, and legal communities. In essence it means that without medical intervention the likelihood of a patient's illness or condition worsening is great or highly probable. And, the doctor must be able to document that non-invasive procedures have been considered or tried, and that the surgical intervention will directly enhance the patient's quality of life in both the short and long-term.

Declaring that a patient needs a medical procedure is however only half of what defines medical necessity. Exact reasoning must also be applied to the reports that physicians provide to a patient's insurer. In other words the doctor must explain why a person needs a procedure and be able to support his or her findings. Subsequently, in the recommendation letters that transsexuals gather for genital reassignment, therapists must provide clinical information which supports their endorsement to the surgeon. Providing a patient's history, diagnosis, and progress throughout transition is critical. So, too, is the therapist's observation that neither therapy, hormones, nor living in role were each not sufficient in treating the patient's condition.

Immediately prior to granting payment, the insurance companies require that surgeons and occasionally the patient's primary physician (usually whomever provides hormones) make similar statements in their treatment plans on behalf of the patient. Often when I am approached by patients who have had insurers decline to pay for genital reassignment, none or only part of the preceding steps have been followed. Immediately after a claim has been denied is the time for a claims appeal to be filed with the company. This is the true for those with and without exclusionary clauses.

Understanding the roles of medical necessity and the appeals process is critical for legal cases to be successful in court. Other questions also arise. What are some of the reasons insurers fail transsexuals who need surgery? First, consumer publications have not been forthcoming with information about the preceding processes. Second, when individuals have financial means, they pay, while those without resources either do without or struggle for an average of seven to ten years to raise surgery money. Also, most therapists are not trained in the art of writing reports which fully support the medical necessity of the requested procedure. Their clients typically do not know what a recommendation letter should contain. Many professionals hate technical writing, however in this instance it is the thorough report which typically gets a procedure paid for by insurance companies either early in the claim process or later in court.

Eugene Schrang, M.D., a plastic surgeon and one of the most respected providers of genital reassignment, is a noted progressive concerning the healthcare of transsexual patients. Commenting upon the subject of surgery he stated, "In 36 years of surgical practice I have found that the procedure is medically necessary, when therapists have documented that the use of hormones and the patient's living full-time in role were not enough to treat the gender dysphoric component of Gender Identity Disorder. Essentially, there is no other way to bring the body into harmony with the mind. Approximately 800 patients have successfully undergone the procedure in my care; and with each of these individuals current clinical guidelines were followed by all careproviders, and this supported their successes."

On the subject of insurance, Dr. Schrang relayed that he presently bills the patient in advance for his services, and provides medical documentation, which allows the patient to pursue a claim and forward funds prior to the procedure. Patients should also be mindful to present hospital and anesthesia billing at the time a claim is made, so these can be paid. Not surprisingly, Dr. Schrang opined that "physicians tend to become defense, particularly when insurance companies fail to follow through on their written agreements to pay claims, and this has happened routinely in the past." Further shedding light on the dismal behavior of insurance companies, he also reported that "sometimes insurance companies purposefully change their policies mid-stream. In sum, it is most interesting that I do not find these difficulties to be true when other surgical procedures are submitted to insurance companies - only genital reassignment!" Dr. Schrang's experiences reflect why a combined collection effort can best be handled by the patient, experts and legal counsel.

Turning our attention to the role of the HBIGDA Standards of Care (SOC) with genital reassignment, it is also easy to observe that past clinical guidelines have to some extent created insurance difficulties for transsexuals. Providing gender-specialized services was for some time a new clinical field, and for a number of years HBIGDA has gradually improved the SOC so that its recommendations meet clinical experience in practice as well as satisfy transgender consumer expectations. Lost in the process, however, are the development of standards which inform insurers that the procedure is no longer experimental and which advises consumers how to secure insurance payment for the procedure. In interviewing Alice Webb, LCSW, DHS, a former president of HBIGDA, and chair of a number of its committees, she said that these issues are a priority for HBIGDA and will be addressed in future revisions of the SOC.

As we review reasons why genital reassignment is still deemed experimental and not covered by insurers, nothing is more frustrating than some of the inaction and indifference by actual careproviders. For instance, one very prominent surgeon, has been quite hostile to the transsexual community pursuit of insurance-paid genital reassignment. In response to a recent claim by a patient interested in his services, he refused to provide a statement that genital reassignment is medically necessary. He also refused to comment on the insurance subject in preparation for this article, and on numerous occasions has hampered advances toward this end. This leaves unanswered the question of who truly benefits when providers promote their procedure as critical to patients seeking their services, yet at the same time are unwilling to represent the same to insurance companies as medically necessary.

By virtue of repeated clinical acceptance, researchers have pointed to genital reassignment as medically necessary, and have demonstrated that it plays a vital role in the well-being of transsexuals. For instance, during their 1999 research on post-operative functioning, Drs. Cohen-Kettenis and Gooren found that although "research on post-operative functioning of transsexuals does not allow for unequivocal conclusions, there is little doubt that sex reassignment substantially alleviates the suffering of transsexuals." (Transsexualism: A Review of Etiology, Diagnosis and Treatment, J Psychosom Res, 46(4):315-33 1999 Apr). It has also been observed in clinical research that "in most transsexuals, the quality of life was improved after surgery inasmuch as four aspects are concerned, i.e., attitude towards the patient's own body; relationships with other people; sexual activity; and occupational functioning." (The Outcome of Sex Reassignment Surgery in Belgrade: 32 Patients of Both Sexes, Rakic Z; Starcevic V; Maric J; Kelin K, Archives of Sexual Behavior, 25(5):515-25 1996 Oct).

It is also helpful to look at legal cases when examining medical necessity and transsexual medical issues. To do so we can turn our attention to an example where the Minnesota Supreme Court found that a transsexual had a right to surgical treatment under the State provided and federally-funded Medicare scheme. In that case, an evidentiary hearing conducted by an official of the county welfare department approved transsexual Doe's application for surgery. In response the county subsequently appealed to the state welfare agency, which reversed the approval, citing the Department of Public Welfare's Physician Handbook which contained a total prohibition on paying for sex reassignment surgery. That prohibition was upheld by a state district court, but later the Minnesota Supreme Court reversed it, finding that sex reassignment surgery was the "only surgical treatment which, if recommended by a physician and related to a patient's health, {that was} not covered by the program." The Court found this to be unjust, specifically holding that "the medical necessity of each applicant requesting funding of transsexual surgery must be considered individually, on a case-by-case basis." Additionally, the Court found fault with reliance on "success" as a determining factor. To require an applicant for {medical assistance} benefits to prove by conclusive evidence that a particular operation will eliminate a disability would be, in many cases, an impossible task and would deprive many needy persons of helpful medical treatment," likening an SRS total success requirement to requirement of proof before-the-fact that cancer will not return after removal of a tumor.

As a forewarning, readers should never become overly optimistic when discovering favorable legal citations because these are almost always replaced by newer legal findings and laws. Amazingly, as is often the case, successes which benefit individuals are later crushed for future claimants by legislative statutes. In this instance, shortly after Doe's victory, the Minnesota State legislature cleverly passed a statute barring state-paid genital reassignment and hormonal treatments for its beneficiaries. Minn. Stat. Sec. 256B.0625, Subd. 3a (1998). If that alone is not enough drama, shortly thereafter representatives tried to further play the role of doctors by proposing that genital reassignment is not a necessary treatment option for gender dysphoria! That proposal failed.

The preceding is only a brief selection of research and legal outcomes involving genital reassignment surgery. More recent medical and legal citations can be found by searching the Internet, media databases, Medline (free), Westlaw (trial version), Nexus-Lexis or other commercial services. The underlying theme, however, which should not fail to escape provider and consumer attention is that insurance corporations hold the financial ability to pay for the procedure, yet they fail to pay because an overwhelming protest does not arise each time a patient is declined. Truthfully, most transsexuals do not view themselves as well-equipped in fighting insurance companies. Subsequently they rarely bother to ask that the insurance company pay for the procedure or challenge denials.

Not asking in and of itself is a tragedy, and most certainly requires that easy-to-understand information be placed in the hands of consumers who are interested in insurance-funded genital reassignment. Generally, there are several rules to every game, and those most vital in this instance include meticulous or thorough building of a claim from cradle to grave. As specifically outlined earlier in this article, the consumer must observe that the therapists document that the procedure is medically necessary. A similar statement from the individual's treating physician who provides hormones is also appropriate.

Documenting all insurance company contacts is critical. This includes written correspondence and notes of conversations. If an insurer has an exclusionary clause for transsexual treatment, it must be informed in writing that its policy is discriminatory, and they must be asked to pay for the procedure. Insurance companies have paid in this situation, just as they have when exclusionary clauses are not evident. It behooves the consumer or insurance claimant to clearly understand that if he or she is denied the procedure, relief can be occasionally gained through the courts as the insurer's denial can be claimed to be discriminatory. This information must also be conveyed to the insurance company in writing, shortly after the first denial, and such a letter should be reviewed by a lawyer or professional familiar with such cases. Threats of a lawsuit should also be accompanied by an offer for mediation, thus leaving the insurance company room for negotiation.

It is generally at the point of receiving the first claim denial that the consumer or insurance claimant must begin searching for helping professionals. These include an attorney as well a clinical expert familiar in the treatment of transsexualism to review, the latter to comment upon the case in the form of a written declaration of why the procedure is medically necessary. It is also at this point that lawyers and experts should advise what claims exist, what damages can be sought and what final offers of mediation should be proposed to the insurance company. This team of professionals, can help you assist in preparation. Your efforts will inform the insurance company that you are not going away and expect medical treatment for your condition

Something should be said about the appeals and legal processes. These can be time-consuming and cause stress. Attorneys and experts generally make a livelihood from such cases; however some transsexuals may not have the funds to afford their services. Those that don't can still proceed by learning how to write the necessary letters, and even very brief medical declarations. Numerous examples of documents containing medical necessity information can be found on the Internet or by asking a lawyer or expert for examples. Then, for a reduced fee, professionals can be asked to review the work, and become involved when things become critical.

Nobody likes the possibility of an expensive, protracted lawsuit. Insurance companies are no exception. At some point a lawsuit becomes more expensive than paying for the procedure. This monetary dynamic, coupled with pre-existing case law and research citations which find genital reassignment medically necessary, are the transsexual insurance claimant's greatest allies. This is particularly so if the individual refuses to take 'no' for an answer, which must be the case for those persons who are willing to ride to battle against discriminatory practices.

It is extremely important to manage such activities with a positive business attitude. Claims may take anywhere from six months to several years to resolve. A person with administrative, managerial or even basic secretarial skills can point an insurance claimant in the right direction, when it comes developing written materials and proceeding with telephone negotiations. In all likelihood there will come a point when pursuing these activities will become difficult. Transsexuals must never personally feel that they are bad people because an insurance company's policies discriminate.

It is highly likely an insurance claimant will encounter rude people. Insurance representatives will say "you can't do that" or " you are wrong." They may even lie. Some careproviders will not feel inclined to get involved, and the insurance claimant may have to look for willing providers. The possibility even exists that other transsexuals won't be supportive, because they may not understand what is going on. These obstacles are part of the process required to successfully manage a claim.

In bringing this paper to its conclusion, it must be observed that to deny a procedure, which is documented as clinically effective, in the face of a patient experiencing medical necessity of it, is wrong. Such behavior on the part of insurers is egregious, and blatantly discriminatory and should not be condoned. Many transsexual persons will doubt whether they have the skills or ability to pursue an insurance claim; however with careful planning and organization obtaining insurance paid genital reassignment is possible.