Overview
On January 26, 2021, Cohen Milstein Sellers & Toll and Transgender Legal Defense & Education Fund (TLDEF), on behalf of several transgender healthcare beneficiaries of Aetna, a CVS Health company, announced that Aetna has expanded its healthcare coverage of gender-affirming surgery to include breast augmentation for transfeminine members in most of its commercial plans. This decision is the result of a collaboration between TLDEF and Cohen Milstein clients, who brought the issue to Aetna’s attention and Aetna.
Case Background
Cora Brna was denied coverage for breast augmentation surgery two years ago, when she tried to schedule it at the same time that she was undergoing genital reassignment, which was covered by Aetna.
Through TLDEF and Cohen Milstein, two transgender women, Nancy Menusan and Cora Brna, who were later joined by two additional transgender women, Allison Escolastico and Elissa Gaytan, brought access-to-care issues to Aetna’s attention after being denied coverage for breast augmentation as part of their gender-affirming treatment. On behalf of these clients, TLDEF and Cohen Milstein initiated contact and worked with Aetna to update Aetna’s clinical policy bulletin to cover breast augmentation for transfeminine members as medically necessary when clinical requirements are met.
When TLDEF and Cohen Milstein approached Aetna about coverage exclusions for transgender members, the company agreed to work collaboratively to improve access for transition-related health care. This includes considering medical evidence and revising its clinical policy on gender-affirming surgery to consider breast augmentation medically necessary rather than cosmetic for transgender members who meet certain criteria, including a letter of referral from a qualified mental health professional; persistent, well-documented gender dysphoria; and the completion of one year of feminizing hormone therapy prior to breast augmentation surgery.
As a part of the agreement, Aetna has said it would also reimburse some trans women who were denied coverage but had the surgery. The company said it was actively reaching out to individuals who had sought authorization for their surgeries and were denied.
The new policy changes agreed to by Aetna come at a time when the federal government is re-examining whether denying some types of care to transgender individuals is discriminatory. Legal advocacy organizations like TLDEF have argued that both the Affordable Care Act and Title VII prohibit discrimination on the basis of gender identity.