Summary

While North Carolina has become the battleground for laws discriminating based on gender identity, Pennsylvania joins states that have taken action to prohibit such discrimination.  Following in the footsteps of Governor Tom Wolf’s executive orders expanding protections from discrimination based on sexual orientation, gender expression or identity, Pennsylvania Insurance Commissioner Teresa Miller issued a Notice announcing new Insurance Department expectations for non-discrimination provisions in health insurance policies.    

Under this guidance, health insurance policies under the jurisdiction of the Pennsylvania Insurance Department may not exclude services based on gender identity and must provide coverage for medically necessary covered services regardless of the insured’s gender identity.  In addition, health insurance policies may not contain a blanket exclusion of coverage for health services related to an individual’s gender transition.  The Department also expects health insurers to include language within policies that specifically details these protections in order to maintain compliance with state and federal laws.  

Unlike other states that have issued similar guidance, Pennsylvania’s  Insurance Department relies on the state insurance law’s general prohibition on discrimination among “individuals of the same class” to provide the state law basis for its position.  In December 2013, Connecticut’s Insurance Department issued a similar Bulletin related to gender identity nondiscrimination.  The Connecticut Department’s position barring gender identity discrimination was partially based on the state’s antidiscrimination laws, which specifically prohibit discrimination based on “gender identity or expression.” Conversely, Pennsylvania law does not contain a similar prohibition for discrimination based on gender identity.  

The Connecticut Bulletin also provided specific guidance on the categories of health insurance subject to the new requirement to file an endorsement reflecting any necessary revisions to health plan documents as a result of the Bulletin.  The Pennsylvania Notice applies to “health insurance policy forms. . . within the Department’s jurisdiction [that are] offered, issued or renewed in this Commonwealth.”  Based on the Notice alone, it is not entirely clear whether this new guidance applies only to traditional health plans, such as major medical expense coverage and basic hospital expense coverage, or if it will have broader application to all policies that offer health or medical coverage.