Raise Your Hand If You Know What ERISA Is?

Most people probably haven’t heard of ERISA but if you work for a company with a federally insured retirement or health insurance plan then you are most likely covered by ERISA.

ERISA plans do not follow state laws but federal laws.

Aetna Beats ERISA Lawsuit Over Transgender Breast Surgery
Bloomberg
By Jacklyn Wille
May 11, 2017

From Pension & Benefits Daily
Pension & Benefits Daily™ covers all major legislative, regulatory, legal, and industry developments in the area of employee benefits every business day, focusing on actions by Congress,...

A transgender woman who sought disability benefits following a breast augmentation surgery lost her lawsuit against Aetna Life Insurance Co. ( Baker v. Aetna Life Ins. Co. , 2017 BL 154737, N.D. Tex., No. 3:15-cv-03679-D, 5/9/17 ).

Aetna properly denied the woman disability benefits for her post-surgery recovery because it reasonably concluded that the surgery was for cosmetic purposes and not a medically necessary procedure aimed at treating an illness, a federal judge ruled May 9. According to Aetna, the surgery wasn’t medically necessary because the woman’s hormone-replacement therapy had already caused her to develop “average-size female breasts,” rendering further augmentation cosmetic.

This case against Aetna and the woman’s employer, L-3 Communications Integrated Systems LP, is one of the first cases to question the extent to which the Employee Retirement Income Security Act protects individuals who receive medical services related to their transgender status. In January, the judge rejected the woman’s attempt to state an ERISA claim for gender identity-based discrimination after finding that the statute didn’t provide for such a claim. The woman’s attempt to advance this claim under the Affordable Care Act was similarly unsuccessful.

Under the Obama administration the Department of Labor argued that Title VII sex discrimination covered gender identity and expression under the 1989 Price Waterhouse v. Hopkins Supreme Court decision.

But the Trump administration takes a 1950 view of sex.

However, the court’s case wasn’t all that bad for us because Aetna didn’t rule out not covering the breast augmentation in the future,

Aetna said that it has no categorical rule about gender dysphoria or male-to-female transitions. Rather, coverage was denied in this case because the woman didn’t establish that her surgery was medically necessary, given that she had developed “size B-C breasts” from her hormone treatments.

The judge agreed with Aetna, noting that the insurer’s medical necessity determination was based in part on the woman’s own description of the surgery as a “cosmetic procedure.”

So that means that they possibly cover breast augmentation if there wasn’t sufficient breast development.