Wisconsin Medicaid covers gender-affirming medical and surgical treatments when medically necessary. In this case, the petitioner sought a prior authorization for six sessions of laser hair removal from the face as part of gender-affirming care. The Department denied the request, arguing that the relevant policy only covers laser hair removal required to prepare for surgery. ALJ John Tedesco concluded the policy did not exclude coverage in this case and that the petitioner had shown the procedure to be medically necessary.
Preliminary Recitals
Pursuant to a petition filed on June 9, 2023, under Wis. Stat. § 49.45(5), and Wis. Admin. Code § HA 3.03(1), to review a decision by the Division of Medicaid Services regarding Medical Assistance (MA), a hearing was held on October 4, 2023, by telephone.
The issue for determination is whether the prior authorization request #— for laser hair removal should be approved.
There appeared at that time the following persons:
PARTIES IN INTEREST:
Petitioner:
—
Petitioner’s Representative:
Attorney Tim Hennigan
ABC For Health, Inc.
32 N Bassett St.
Madison, WI 53703
Respondent:
Department of Health Services
1 West Wilson Street, Room 651
Madison, WI 53703
By:
Division of Medicaid Services
PO Box 309
Madison, WI 53701-0309
ADMINISTRATIVE LAW JUDGE:
John P. Tedesco
Division of Hearings and Appeals
Findings of Fact
- Petitioner is a resident of Rock County.
- Petitioner is a transgender woman.
- Petitioner’s physician sought prior authorization for six sessions of laser hair removal from petitioner’s face as part of gender-affirming care.
- The department denied the request.
- Petitioner filed a timely appeal.
Discussion
The MA program may only reimburse providers for medically necessary and appropriate health care services and equipment listed in Wis. Stat., §§49.46(2) and 49.47(6)(a), as implemented by Wis. Admin. Code, Chapter DHS 107. In December 2022 the Medicaid Program issued a policy update relating to gender-affirming health care. See ForwardHealth Update 2022-57. This policy statement explains:
ForwardHealth covers gender-affirming medical and/or surgical treatments (GAMASTs) for individuals who may identify as, but are not limited to, the following:
- Male
- Female
- Gender diverse
- Nonbinary
- Agender
- Intersex
- Eunuch
Id. at 2. The policy proceeds to explain what services may be covered services under the new policy:
ForwardHealth will consider coverage for surgical and medical services and procedures as summarized in World Professional Association for Transgender Health (WPATH) Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, except for services listed in Wis. Admin. Code § DHS 107.06(5).
Hair removal from the face is, indeed recommended in the WPATH Standards-8:
We recommend health care professionals offer transgender and gender diverse people referrals for hair removal from the face, body, and genital areas for gender-affirmation or as part of a preoperative preparation process.
See Standards of Care for the Health of Transgender and Gender Diverse People, Version 8 at URL https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9553112/. Laser hair removal is not barred from coverage by Wis. Admin. Code § DHS 107.06(5).
The department, however, argues that hair removal under the new policy is limited only to pre-operative situations. That is the extent of the programs denial. This ALJ contacted the program prior to hearing and the program confirmed that the denial was based solely on that basis under the new Update policy language. Hair removal is addressed twice in the Update. The specific language is:
Covered services include, but are not limited to, the following categories: [p]rocedures designed to prepare individuals for surgery (that is, hair removal); and,
Providers are advised of the following: ForwardHealth will cover permanent hair removal procedures, except as identified in Wis. Admin. Code § DHS 107.06(5) for noncovered services, as preoperative protocols for gender-affirming surgery when medically necessary.
ForwardHealth Update 2022-57 at 5 & 6.
While the policy does state that pre-operative hair removal is potentially covered, that inclusion does not mean that other hair removal is prohibited under the policy. Even the first quote above states that other situations may be covered. That is, I do not read the policy to exclude hair removal for gender-affirming purposes. If the department had intended to exclude that then I am confident the rule would have stated so explicitly. If that is the intent then the rule should be amended.
As the rule states, the requests for services must be considered on a case-by-case basis. I suspect that many, if not most, requests for hair removal will be denied. But, the record in this specific case, including the well-documented history of this petitioner’s efforts to obtain gender-affirming care, tip this case toward approval.
I note that much of petitioner’s argument referred to ALJ Schneider’s approval of hair removal in a prior case. I am not persuaded by that case and it is not controlling. Petitioner should not expect that future PA’s will be approved. It should not be expected that approval of this PA or any prior PA for this service will result in approval of future PA’s for hair removal. Furthermore, my decision in this case is not an endorsement of ongoing maintenance. Any future PA will be considered only on its own merits.
I note to petitioner that the provider’s office will not receive a copy of this decision. To have the service approved, petitioner must provide a copy of this decision to the provider. The provider must then submit a new prior authorization request, along with a copy of this decision, to receive the approved coverage.
Conclusions of Law
The Petitioner established the cost effectiveness, appropriateness, and medical necessity of the requested laser hair removal services based on current Medicaid policy.
THEREFORE, it is
Ordered
That the PA is hereby approved, and that Scott Chaiet, MD and UW Health is hereby authorized to provide six visits of laser hair removal (Code 17999). The provider should submit a new prior authorization request along with a copy of this decision which is directed to be approved by the department.
[Request for a rehearing and appeal to court instructions omitted.]