Comment Letter #2 to CMS

I wrote a personal comment letter to CMS on the proposal to exclude gender affirming care as an Essential Health Benefit (EHB).  An EHB is a benefit that is required to be offered by all insurers in the market (cost-sharing likely applies) and the cost of providing that benefit is eligible for premium tax credits.  There are 10 broad categories of EHBs but each state can, within broad contours, fill in the details.  If a benefit is not an EHB, the federal government will not pay for it and any insurer that voluntarily offers the benefit will be extremely adversely selected against it. It makes the benefit rare if not impossible to find.

I’m opposed to this proposal as it will harm people who just want to get along with their lives.  I am writing an exceptionally dry and technocratic letter as that is where I think there is policy leverage.  The logic being used could be used to exclude other rare occurrences and the process is likely flawed.

Comment below the fold:

April 8, 2025

Secretary Kennedy,

I write in my personal capacity in regards to the proposed Program Integrity Rule, CMS-9884-P.  I am a health policy scholar with over twenty peer-reviewed publications in leading journals on the ACA individual health insurance marketplaces.  I am deeply concerned that CMS has proposed to not allow gender affirming care to be an Essential Health Benefit (EHB)  in this rule:

We propose to amend §156.115(d) to provide that issuers of non- grandfathered individual and small group market health insurance coverage—that is, issuers of coverage subject to EHB requirements—may not provide coverage for sex-trait modification as an EHB beginning with PY 2026.

Gender affirming care, including surgery, is medically appropriate for a population that experiences substantially higher rates of poor mental health and lower life expectancy including high risk of suicidality.^1,2  Care that is provided under the umbrella of gender affirming care is frequently provided for multiple circumstances including to patients who are not seeking or needing gender affirming care but receive identical surgical and pharmaceutical treatment to address other medical needs.  Regret is exceptionally low and satisfaction is exceptionally high.³  Gender affirming care is associated with substantially lower suicide consideration and depression among teens.⁴

CMS argues that the rarity of utilization of gender affirming care is evidence to support the proposal to not include gender affirming care as an EHB:

less than 1 percent of the U.S. population seeks forms of sex-trait modification; this low utilization is apparent in the External Data Gathering Environment (EDGE) limited data set.152 In this data set, which encompasses the majority of health insurance enrollees covered outside of large group plans, approximately 0.11 percent of enrollees in non-grandfathered individual and small group market plans utilized sex- trait modification during PYs 2022 and 2023.153

This same logic could be used to exclude hemophilia from treatment as individuals with hemophilia are an exceptionally rare group with fewer than 1 in 5,600 male births and thus 1:11,000 total births having hemophiliac traits.⁵

The low prevalence of gender affirming care needs suggests that the per member per month (PMPM) costs of providing this care is low. The net costs of providing this care is likely lower than the raw PMPM as the lack of appropriate gender affirming care may lead to mental and physical health crisises that will cause corresponding increases in PMPM.  Higher PMPM is against the objective of CMS to have a viable and competitive non-subsidized ACA marketplace.

Furthermore, CMS has not performed a cost-benefit analysis of not including gender affirming care as an EHB. When CMS performs this analysis, a cost should include the likely additional deaths that the lack of access to a needed form of care will lead to if this proposal is adapted.  Per the January 25, 2024 Data Point by Aaron Kearsley on HHS Standard Values for Regulatory Analysis 2024 (https://aspe.hhs.gov/sites/default/files/documents/cd2a1348ea0777b1aa918089e4965b8c/standard-ria-values.pdf) the low cost estimate of the value of a standard life in 2026 is $6.2 million dollars with a central estimate of $13.2 million dollars.  The lowest cost assumption of a the value of a quality adjusted life year (VQALY) is $276,000 for a year of perfect health for a forty year old.  Using more a more reasonable discount rate of 3% and the central estimate, a QALY is valued at $692,000.

Estimating the trade-offs of this policy in terms of cost and lives would be needed to make a fully informed decision.

 

Sincerely,

David M. Anderson

 

1. Ream GL. Trends in Deaths by Suicide 2014–2019 Among Lesbian, Gay, Bisexual, Transgender, Queer, Questioning, and Other Gender/Sexual Minority (LGBTQ+) Youth -. J Adolesc Health. 2022 Nov;71(5):609–15.
2. Witcomb GL, Bouman WP, Claes L, Brewin N, Crawford JR, Arcelus J. Levels of depression in transgender people and its predictors: Results of a large matched control study with transgender people accessing clinical services. J Affect Disord. 2018 Aug 1;235:308–15.
3. Olson KR, Raber GF, Gallagher NM. Levels of Satisfaction and Regret With Gender-Affirming Medical Care in Adolescence. JAMA Pediatr. 2024 Dec 1;178(12):1354–61.
4. Green AE, DeChants JP, Price MN, Davis CK. Association of Gender-Affirming Hormone Therapy With Depression, Thoughts of Suicide, and Attempted Suicide Among Transgender and Nonbinary Youth. J Adolesc Health. 2022 Apr 1;70(4):643–9.
5. Hemophilia Overview: Types, Causes, Symptoms, and Treatment | Pfizer [Internet]. [cited 2025 Apr 8]. Available from: https://www.pfizer.com/disease-and-conditions/hemophilia