New Jersey: DOBI issues guidance to insurance carriers to ensure nondiscriminatory healthcare coverage to transgender individuals

via the New Jersey Dept. of Banking & Insurance:

New Jersey Department of Banking and Insurance Issues Guidance to Insurance Carriers to Ensure Nondiscriminatory Health Coverage to Transgender Individuals

  • Addresses obligation to follow laws against discrimination based on gender identity, gender expression or on the basis that an individual is a transgender person

TRENTON — Department of Banking and Insurance Acting Commissioner Justin Zimmerman today issued a bulletin providing guidance to insurance carriers concerning health coverage for transgender individuals to ensure all New Jersey residents have equal access to health coverage and health care.  

The guidance follows Executive Order No. 326 signed by Governor Phil Murphy in April protecting gender-affirming health care in New Jersey. 

“My Administration will continue to work to make New Jersey a safe and welcoming place for members of the LGBTQIA+ community in the midst of attacks on their rights in other areas of the country,” said Governor Murphy. “It is crucial to combat discrimination in every area of our society, including in the provision of health services and benefits. Ensuring all New Jerseyans have equal access to the care they need, regardless of their gender identity or expression, is vital to protecting the health and well-being of our residents.” 

“A person’s gender identity or gender expression should never be a factor in determining health coverage. Discrimination of any kind will not be tolerated, especially when it limits or denies a person’s ability to access medical treatment and services and puts their well-being at risk. Insurance carriers have an obligation under state and federal law to provide and ensure nondiscriminatory coverage for transgender individuals. We expect insurance companies to adhere to these legal requirements and provide equal access to health coverage to all New Jersey residents,” said Acting Commissioner Zimmerman. 

The bulletin states that regulated entities must comply with State and Federal laws against discrimination and cannot issue contracts, policies, or plans that discriminate or act to discriminate on the basis of a covered person’s or prospective covered person’s gender identity or gender expression or on the basis that the covered person or prospective covered person is a transgender person. 

Specifically, the bulletin provides guidance regarding the prohibitions against unfair discrimination in the issuance and administration of health benefits plans in the state, established by P.L. 2017, c. 176. Under P.L. 2017, c. 176, carriers are prohibited from discriminating on the basis of a covered person's or prospective covered person's gender identity or expression or on the basis that the covered person or prospective covered person is a transgender person. This includes, among other things, issuing or renewing health benefits plans containing provisions that discriminate, or act to discriminate, on the basis of the aforementioned factors.  

Based on the prohibitions delineated by P.L. 2017, c. 176 and other applicable laws, the department will conclude that the following acts, if committed by carriers, constitute unfair discrimination:

  • Maintaining broad, blanket, or categorical exclusions, provisions, terminology, or definitions for transition-related care that effectively eliminate transition-related care from coverage.
  • Denying or limiting coverage or denying claims for health services for transition-related care if coverage is available for the same services for other types of care.
  • Denying or limiting coverage or denying claims for health care services that are ordinarily or exclusively available to individuals of one sex for covered persons who are enrolled as belonging to the other sex or has undergone, or is in the process of undergoing, gender transition.
  • Requiring extra payments or premiums for enrollees who are transgender persons.

The Bulletin also reminds carriers that state law prohibits a carrier from treating a person’s gender identity as a pre-existing condition for which coverage will be denied or limited. State law also prohibits denying, cancelling, limiting or refusing to issue or renew a contract on the basis of a covered person’s or prospective covered person’s gender identity or expression, or for the reason that the covered person or prospective covered person is a transgender person.

Carriers may not apply a different medical necessity review process, or impose extra documentation requirements, for transgender individuals relative to other individuals seeking the same or similar services. Additionally, in order to ensure coverage is available to a transgender person on the same terms as other covered persons, carriers must ensure that there is an adequate network of health care providers that will provide all covered services to the covered person regardless of the covered person’s gender identity or gender expression, or whether the covered person is a transgender person.  

Carriers are expected to provide consumers with clear information about coverage of transition-related care, and clinical criteria guidelines related to medical necessity determinations must be posted on the carrier’s website, as set forth in N.J.S.A. 17B:30-51(a)(1).

The Department also expects all carriers to comply with Federal and State laws and any carrier that violates the requirements of Federal or State law, may be subject to enforcement action. 

The Department encourages consumers to communicate concerns and complaints regarding insurance matters to the Department by calling its Consumer Hotline at 1-800-446-7467 (8:30 am to 5:00 pm EST Monday through Friday), or by going to the department website and clicking on Consumer Assistance - Inquiries/Complaints.

To read the bulletin, go here.