The path to expanded Medicaid for transgender people turns out to be way more complicated than Ninehouser and her colleagues imagined.
The original idea, spelled out in a March 2 letter to the governor, hinged on Wolf's authority to define coverage under the state's Medicaid plan. Redefining certain Medicaid benefits was something Wolf was planning to do anyway as part of his promise to transition from former Gov. Tom Corbett's Healthy PA plan to a traditional Medicaid expansion under the Affordable Care Act.
According to the letter sent by the Pennsylvania Health Access Network, "The transition from Healthy PA to a straightforward Medicaid Expansion presents an important opportunity to address longstanding disparities in access to care for underserved populations and craft a well-functioning system that will meet the needs of low-income Pennsylvanians into the future."
The letter, signed by about 50 groups including the Women's Law Project, Just Harvest and the Disability Rights Network of PA, urges the governor to require that "Medicaid MCOs [managed-care organizations] not be allowed to discriminate against people with the pre-existing condition of gender dysphoria by excluding medically necessary care, including hormone therapy, counseling, surgery and other transition-related treatment."
Earlier this month, simply expanding Medicaid benefits seemed like the easiest way to create coverage for low-income transgender people, since it could be folded into a new adult-benefits plan Wolf was planning to announce as this story went to press.
But what some advocates, including Ninehouser, didn't realize is that there are state Department of Human Services (DHS) regulations that explicitly prohibit Medicaid reimbursement for "surgical procedures and medical care provided in connection with sex reassignment," including hormones. And the governor can't simply override those regulations just by announcing a new Medicaid benefits package.
"We should've known about that," Ninehouser acknowledges, referring to the specific regulations that prohibit trans-related health coverage.
But there's a new, albeit more complex, strategy. Wolf has the authority to start a process that can undo the state regulations without a vote in the legislature. (Regulations, unlike statutes, are written by agencies themselves and can be changed as long as there's no conflict with state law.)
He would have to get DHS to present the regulatory change to the Independent Regulatory Review Commission, a five-member panel that considers whether the change is possible under the agency's statutory authority or is in the public interest, among other considerations, according to David Sumner, the IRRC's executive director.
The process includes a 30-day public-comment period and input from the appropriate standing committees in the legislature — whose input "would have weight to it," Sumner says. But the final authority rests with the commission itself.
The commission currently has two appointees from legislative Republicans, two from legislative Democrats and is awaiting the fifth appointee from the governor. That means that if all three Democratic appointees voted down the DHS regulations prohibiting reimbursements for transition-related care under Medicaid, the governor could then issue a directive that would require coverage, Ninehouser says.
But will the governor initiate that process?
His press secretary, Jeffrey Sheridan, did not return multiple requests for comment. But DHS spokeswoman Kait Gillis wrote in an email that getting rid of the Medicaid exclusions for trans coverage "is currently under review by DHS. As Gov. Wolf has said, he looks forward to a robust conversation with the legislature, community and all other parties regarding this issue."