By Dave Solomon

Medicaid money can now be used in New Hampshire to pay for sex change surgery deemed medically necessary, after a legislative committee voted 6-4 on Tuesday to approve new rules for the health care program that serves low-income households.

The vote came after more than two hours of sometimes emotional testimony over the issue of gender reassignment, and whether it is ever truly medically necessary.

Health and Human Services Commissioner Jeffrey Meyers presented the rules change to the Joint Legislative Committee on Administrative Rules (JLCAR), saying the specific exclusion of "gender reassignment surgery" from Medicaid coverage is discriminatory and in violation of the Affordable Care Act (ACA).

"The department is undertaking this effort so that gender reassignment surgery would be a covered benefit and the entire continuum of care for the treatment of gender dysphoria would be available for those who are Medicaid beneficiaries," he said.

Supporters and opponents of the rule change turned out for the vote, with many speakers urging the committee to reject the change.

Several pointed out that a federal judge in Texas has already imposed an injunction on federal enforcement of the transgender health mandate in the ACA, and that the Trump administration is likely to take action against the mandate as well.

Other opponents, some of them Medicaid beneficiaries, said the program could not afford the additional cost.

Meyers pointed out that while the injunction prohibits the U.S. Department of Justice from enforcing rules promulgated by the Obama Administration, it does not constrain states from adopting rules at their discretion.

"We take the position that the ACA prohibits discrimination, so we believe we are acting in response to a law adopted by Congress," he said.

JLCAR Chairman John Reagan said the committee is only empowered to vote on the legality of the rule, and not the policy issues it raises.

"We are not here to debate the detriment or efficacy of gender reassignment," he said. Nonetheless, Reagan allowed almost two hours of testimony, much of it hostile to the rule change.

"No matter what these so-called experts try to tell you, we were not designed to accommodate this transgendered business," said John Jeskevicius of Weare. "If you want to become a transgendered person, that's your business. When it becomes me paying for it, then it becomes my business."

Many opponents took issue with the fact that letters were sent to Medicaid recipients, some of them children, advising them of the new benefit before it was even approved by the committee.

The costs of the traditional Medicaid program, serving more than 130,000 New Hampshire residents, are split 50-50 by the state and federal government. Meyers said the cost of the new benefit to the program would be around $286,000 a year, based on actuarial estimates.

Lawyers for the American Civil Liberties Union, Freedom New Hampshire, and GLBTQ Legal Advocates and Defenders (GLAD) spoke in support of the change, arguing that five separate federal court decisions have established that "gender identity" is covered under anti-discrimination statutes.

Sen. Kevin Avard, R-Nashua, objected to the rule change on the grounds that information on the cost to the state for the new benefit is inadequate. That failed in a 5-5 vote, after which Sen. Dan Feltes, D-Concord, moved to accept the rule change, which was approved 6-4.

Rep. Carol McGuire, R-Epsom, vice chair, voted for Avard's objection, but then also voted in favor of the motion made by Feltes. "Once we lost the vote on the expense, we could go on with 5-5 votes all day," she said afterwards. "I think that's absurd."

McGuire predicted that the full Legislature would take up the question when it reconvenes.

"It's obviously a divisive issue, and independent of whether you think it's a good thing or not, I don't like the idea that we're spending money on it when we have trouble getting money for other priorities in the Medicaid program," she said. "The senators are still in their filing period, so they are likely to bring a bill forward."

(c)2017 The New Hampshire Union Leader (Manchester, N.H.)