Text of WA SB 5313 (2021)

AN ACT Relating to health insurance discrimination; amending RCW 1 49.60.178 and 41.05.017; and reenacting and amending RCW 49.60.040 2 and 48.30.300. 3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 4 Sec. 1. RCW 49.60.040 and 2020 c 85 s 1 are each reenacted and 5 amended to read as follows: 6 The definitions in this section apply throughout this chapter 7 unless the context clearly requires otherwise. 8 (1) "Adverse benefit determination" means a denial, reduction, or 9 termination of a benefit, or a failure to provide or make payment, in 10 whole or in part, for a benefit, including a denial, reduction, 11 termination, or failure to provide or make payment that is based on a 12 determination of an enrollee's or applicant's eligibility to 13 participate in a plan, and including, with respect to group health 14 plans, a denial, reduction, or termination of a benefit, or a failure 15 to provide or make payment, in whole or in part, for a benefit 16 resulting from the application of any utilization review, as well as 17 a failure to cover an item or service for which benefits are 18 otherwise provided because it is determined to be experimental or 19 investigational or not medically necessary or appropriate. 20 S-0516.1 SENATE BILL 5313 State of Washington 67th Legislature 2021 Regular Session By Senators Liias and Randall p. 1 SB 5313 (2) "Aggrieved person" means any person who: (a) Claims to have 1 been injured by an unfair practice in a real estate transaction; or 2 (b) believes that he or she will be injured by an unfair practice in 3 a real estate transaction that is about to occur. 4 (((2))) (3) "Any place of public resort, accommodation, 5 assemblage, or amusement" includes, but is not limited to, any place, 6 licensed or unlicensed, kept for gain, hire, or reward, or where 7 charges are made for admission, service, occupancy, or use of any 8 property or facilities, whether conducted for the entertainment, 9 housing, or lodging of transient guests, or for the benefit, use, or 10 accommodation of those seeking health, recreation, or rest, or for 11 the burial or other disposition of human remains, or for the sale of 12 goods, merchandise, services, or personal property, or for the 13 rendering of personal services, or for public conveyance or 14 transportation on land, water, or in the air, including the stations 15 and terminals thereof and the garaging of vehicles, or where food or 16 beverages of any kind are sold for consumption on the premises, or 17 where public amusement, entertainment, sports, or recreation of any 18 kind is offered with or without charge, or where medical service or 19 care is made available, or where the public gathers, congregates, or 20 assembles for amusement, recreation, or public purposes, or public 21 halls, public elevators, and public washrooms of buildings and 22 structures occupied by two or more tenants, or by the owner and one 23 or more tenants, or any public library or educational institution, or 24 schools of special instruction, or nursery schools, or day care 25 centers or children's camps: PROVIDED, That nothing contained in this 26 definition shall be construed to include or apply to any institute, 27 bona fide club, or place of accommodation, which is by its nature 28 distinctly private, including fraternal organizations, though where 29 public use is permitted that use shall be covered by this chapter; 30 nor shall anything contained in this definition apply to any 31 educational facility, columbarium, crematory, mausoleum, or cemetery 32 operated or maintained by a bona fide religious or sectarian 33 institution. 34 (((3))) (4) "Commission" means the Washington state human rights 35 commission. 36 (((4))) (5) "Complainant" means the person who files a complaint 37 in a real estate transaction. 38 (((5))) (6) "Covered multifamily dwelling" means: (a) Buildings 39 consisting of four or more dwelling units if such buildings have one 40 p. 2 SB 5313 or more elevators; and (b) ground floor dwelling units in other 1 buildings consisting of four or more dwelling units. 2 (((6))) (7) "Credit transaction" includes any open or closed end 3 credit transaction, whether in the nature of a loan, retail 4 installment transaction, credit card issue or charge, or otherwise, 5 and whether for personal or for business purposes, in which a 6 service, finance, or interest charge is imposed, or which provides 7 for repayment in scheduled payments, when such credit is extended in 8 the regular course of any trade or commerce, including but not 9 limited to transactions by banks, savings and loan associations or 10 other financial lending institutions of whatever nature, stock 11 brokers, or by a merchant or mercantile establishment which as part 12 of its ordinary business permits or provides that payment for 13 purchases of property or service therefrom may be deferred. 14 (((7))) (8)(a) "Disability" means the presence of a sensory, 15 mental, or physical impairment that: 16 (i) Is medically cognizable or diagnosable; or 17 (ii) Exists as a record or history; or 18 (iii) Is perceived to exist whether or not it exists in fact. 19 (b) A disability exists whether it is temporary or permanent, 20 common or uncommon, mitigated or unmitigated, or whether or not it 21 limits the ability to work generally or work at a particular job or 22 whether or not it limits any other activity within the scope of this 23 chapter. 24 (c) For purposes of this definition, "impairment" includes, but 25 is not limited to: 26 (i) Any physiological disorder, or condition, cosmetic 27 disfigurement, or anatomical loss affecting one or more of the 28 following body systems: Neurological, musculoskeletal, special sense 29 organs, respiratory, including speech organs, cardiovascular, 30 reproductive, digestive, ((genitor-urinary [genitourinary])) 31 genitourinary, hemic and lymphatic, skin, and endocrine; or 32 (ii) Any mental, developmental, traumatic, or psychological 33 disorder, including but not limited to cognitive limitation, organic 34 brain syndrome, emotional or mental illness, and specific learning 35 disabilities. 36 (d) Only for the purposes of qualifying for reasonable 37 accommodation in employment, an impairment must be known or shown 38 through an interactive process to exist in fact and: 39 p. 3 SB 5313 (i) The impairment must have a substantially limiting effect upon 1 the individual's ability to perform his or her job, the individual's 2 ability to apply or be considered for a job, or the individual's 3 access to equal benefits, privileges, or terms or conditions of 4 employment; or 5 (ii) The employee must have put the employer on notice of the 6 existence of an impairment, and medical documentation must establish 7 a reasonable likelihood that engaging in job functions without an 8 accommodation would aggravate the impairment to the extent that it 9 would create a substantially limiting effect. 10 (e) For purposes of (d) of this subsection, a limitation is not 11 substantial if it has only a trivial effect. 12 (((8))) (9) "Dog guide" means a dog that is trained for the 13 purpose of guiding blind persons or a dog that is trained for the 14 purpose of assisting hearing impaired persons. 15 (((9))) (10) "Dwelling" means any building, structure, or portion 16 thereof that is occupied as, or designed or intended for occupancy 17 as, a residence by one or more families, and any vacant land that is 18 offered for sale or lease for the construction or location thereon of 19 any such building, structure, or portion thereof. 20 (((10))) (11) "Employee" does not include any individual employed 21 by his or her parents, spouse, or child, or in the domestic service 22 of any person. 23 (((11))) (12) "Employer" includes any person acting in the 24 interest of an employer, directly or indirectly, who employs eight or 25 more persons, and does not include any religious or sectarian 26 organization not organized for private profit. 27 (((12))) (13) "Employment agency" includes any person undertaking 28 with or without compensation to recruit, procure, refer, or place 29 employees for an employer. 30 (((13))) (14) "Families with children status" means one or more 31 individuals who have not attained the age of eighteen years being 32 domiciled with a parent or another person having legal custody of 33 such individual or individuals, or with the designee of such parent 34 or other person having such legal custody, with the written 35 permission of such parent or other person. Families with children 36 status also applies to any person who is pregnant or is in the 37 process of securing legal custody of any individual who has not 38 attained the age of eighteen years. 39 p. 4 SB 5313 (((14))) (15) "Full enjoyment of" includes the right to purchase 1 any service, commodity, or article of personal property offered or 2 sold on, or by, any establishment to the public, and the admission of 3 any person to accommodations, advantages, facilities, or privileges 4 of any place of public resort, accommodation, assemblage, or 5 amusement, without acts directly or indirectly causing persons of any 6 particular race, creed, color, sex, sexual orientation, national 7 origin, or with any sensory, mental, or physical disability, or the 8 use of a trained dog guide or service animal by a person with a 9 disability, to be treated as not welcome, accepted, desired, or 10 solicited. 11 (((15))) (16) "Gender affirming treatment" means a service or 12 product that a health care provider, as defined in RCW 70.02.010, 13 prescribes to an individual to address the specific needs of that 14 patient, to alleviate suffering, and/or address a condition, related 15 to an individual's protected gender identity characteristics and/or 16 allows the individual to acquire primary and/or secondary sex 17 characteristics more aligned with an individual's gender identity. 18 Gender affirming treatment includes, but is not limited to, treatment 19 for gender dysphoria. Gender affirming treatment can be prescribed to 20 two spirit, transgender, nonbinary, and other gender diverse 21 individuals. 22 (17) "Health carrier" has the same meaning as in RCW 48.43.005 23 and, for the purpose of this chapter only, includes health plans 24 offered under chapter 41.05 RCW. 25 (18) "Honorably discharged veteran or military status" means a 26 person who is: 27 (a) A veteran, as defined in RCW 41.04.007; or 28 (b) An active or reserve member in any branch of the armed forces 29 of the United States, including the national guard, coast guard, and 30 armed forces reserves. 31 (((16))) (19) "Labor organization" includes any organization 32 which exists for the purpose, in whole or in part, of dealing with 33 employers concerning grievances or terms or conditions of employment, 34 or for other mutual aid or protection in connection with employment. 35 (((17))) (20) "Marital status" means the legal status of being 36 married, single, separated, divorced, or widowed. 37 (((18))) (21) "National origin" includes "ancestry." 38 (((19))) (22) "Person" includes one or more individuals, 39 partnerships, associations, organizations, corporations, 40 p. 5 SB 5313 cooperatives, legal representatives, trustees and receivers, or any 1 group of persons; it includes any owner, lessee, proprietor, manager, 2 agent, or employee, whether one or more natural persons; and further 3 includes any political or civil subdivisions of the state and any 4 agency or instrumentality of the state or of any political or civil 5 subdivision thereof. 6 (((20))) (23) "Premises" means the interior or exterior spaces, 7 parts, components, or elements of a building, including individual 8 dwelling units and the public and common use areas of a building. 9 (((21))) (24) "Race" is inclusive of traits historically 10 associated or perceived to be associated with race including, but not 11 limited to, hair texture and protective hairstyles. For purposes of 12 this subsection, "protective hairstyles" includes, but is not limited 13 to, such hairstyles as afros, braids, locks, and twists. 14 (((22))) (25) "Real estate transaction" includes the sale, 15 appraisal, brokering, exchange, purchase, rental, or lease of real 16 property, transacting or applying for a real estate loan, or the 17 provision of brokerage services. 18 (((23))) (26) "Real property" includes buildings, structures, 19 dwellings, real estate, lands, tenements, leaseholds, interests in 20 real estate cooperatives, condominiums, and hereditaments, corporeal 21 and incorporeal, or any interest therein. 22 (((24))) (27) "Respondent" means any person accused in a 23 complaint or amended complaint of an unfair practice in a real estate 24 transaction. 25 (((25))) (28) "Service animal" means any dog or miniature horse, 26 as discussed in RCW 49.60.214, that is individually trained to do 27 work or perform tasks for the benefit of an individual with a 28 disability, including a physical, sensory, psychiatric, intellectual, 29 or other mental disability. The work or tasks performed by the 30 service animal must be directly related to the individual's 31 disability. Examples of work or tasks include, but are not limited 32 to, assisting individuals who are blind or have low vision with 33 navigation and other tasks, alerting individuals who are deaf or hard 34 of hearing to the presence of people or sounds, providing nonviolent 35 protection or rescue work, pulling a wheelchair, assisting an 36 individual during a seizure, alerting individuals to the presence of 37 allergens, retrieving items such as medicine or the telephone, 38 providing physical support and assistance with balance and stability 39 to individuals with mobility disabilities, and helping persons with 40 p. 6 SB 5313 psychiatric and neurological disabilities by preventing or 1 interrupting impulsive or destructive behaviors. The crime deterrent 2 effects of an animal's presence and the provision of emotional 3 support, well-being, comfort, or companionship do not constitute work 4 or tasks. This subsection does not apply to RCW 49.60.222 through 5 49.60.227 with respect to housing accommodations or real estate 6 transactions. 7 (((26))) (29) "Sex" means gender. 8 (((27))) (30) "Sexual orientation" means heterosexuality, 9 homosexuality, bisexuality, and gender expression or identity. As 10 used in this definition, "gender expression or identity" means having 11 or being perceived as having a gender identity, self-image, 12 appearance, behavior, or expression, whether or not that gender 13 identity, self-image, appearance, behavior, or expression is 14 different from that traditionally associated with the sex assigned to 15 that person at birth. 16 Sec. 2. RCW 49.60.178 and 2020 c 52 s 9 are each amended to read 17 as follows: 18 (1) It is an unfair practice for any person whether acting for 19 himself, herself, or another in connection with an insurance 20 transaction or transaction with a health maintenance organization to 21 cancel or fail or refuse to issue or renew insurance or a health 22 maintenance agreement to any person because of sex, marital status, 23 sexual orientation, race, creed, color, national origin, citizenship 24 or immigration status, or the presence of any sensory, mental, or 25 physical disability or the use of a trained dog guide or service 26 animal by a person with disabilities: PROVIDED, That a practice which 27 is not unlawful under RCW 48.30.300, 48.44.220, or 48.46.370 does not 28 constitute an unfair practice for the purposes of this section. For 29 the purposes of this section, "insurance transaction" is defined in 30 RCW 48.01.060, health maintenance agreement is defined in RCW 31 48.46.020, and "health maintenance organization" is defined in RCW 32 48.46.020. 33 (2) For a health carrier offering a health plan issued or renewed 34 on or after January 1, 2022: 35 (a) It is an unfair practice to issue an adverse benefit 36 determination for gender affirming treatment when that care is 37 prescribed to an individual because of, related to, or consistent 38 p. 7 SB 5313 with a protected gender identity characteristic under RCW 49.60.040 1 and is medically necessary. 2 (b) It is unfair practice to apply categorical cosmetic or 3 blanket exclusions to gender affirming treatment. 4 (c) Facial feminization surgeries and facial gender affirming 5 treatment, such as tracheal shaves, hair electrolysis, and other care 6 such as mastectomies, breast reductions, and breast implants, or any 7 combination of gender affirming procedures, when prescribed as gender 8 affirming treatment and are medically necessary, shall not be 9 excluded as cosmetic. 10 (d) Health carriers must ensure that health care providers who 11 have experience prescribing or delivering gender affirming treatment 12 conduct the utilization reviews pursuant to RCW 48.43.005(45) for any 13 claim for gender affirming treatment. 14 (e) If the health carrier does not have an adequate network for 15 gender affirming treatment, the health carrier shall ensure the 16 delivery of timely and geographically accessible medically necessary 17 gender affirming treatment at no greater expense than if the health 18 carrier had an in-network, geographically accessible provider 19 available. This includes, but is not limited to, providing case 20 management services to secure out-of-network gender affirming 21 treatment options that are available to the enrollee in a timely 22 manner within their geographic region. The enrollee shall pay no more 23 than the same cost sharing that the enrollee would pay for the same 24 covered services received from an in-network provider. 25 (3) Subsections (1) and (2) of this section apply to health plans 26 under chapter 74.09 RCW and all employee benefit plans pursuant to 27 RCW 41.05.075. 28 (4) The fact that such unfair practice may also be a violation of 29 chapter 48.30, 48.44, or 48.46 RCW does not constitute a defense to 30 an action brought under this section. 31 (5) The insurance commissioner, under RCW 48.30.300, and the 32 human rights commission, under chapter 49.60 RCW, shall have 33 concurrent jurisdiction under this section and shall enter into a 34 working agreement as to procedure to be followed in complaints under 35 this section. 36 (6) The insurance commissioner may adopt rules necessary for the 37 implementation of this section. 38 p. 8 SB 5313 Sec. 3. RCW 41.05.017 and 2019 c 427 s 21 are each amended to 1 read as follows: 2 Each health plan that provides medical insurance offered under 3 this chapter, including plans created by insuring entities, plans not 4 subject to the provisions of Title 48 RCW, and plans created under 5 RCW 41.05.140, are subject to the provisions of RCW 48.43.500, 6 70.02.045, 48.43.505 through 48.43.535, 48.43.537, 48.43.545, 7 48.43.550, 70.02.110, 70.02.900, 48.43.190, 48.43.083, 48.30.300, and 8 chapter 48.49 RCW. 9 Sec. 4. RCW 48.30.300 and 2020 c 274 s 32 and 2020 c 228 s 8 are 10 each reenacted and amended to read as follows: 11 Notwithstanding any provision contained in ((Title 48 RCW)) this 12 title to the contrary: 13 (1) A person or entity engaged in the business of insurance in 14 this state may not refuse to issue any contract of insurance or 15 cancel or decline to renew such contract because of the sex, marital 16 status, or sexual orientation as defined in RCW 49.60.040, or the 17 presence of any disability of the insured or prospective insured. The 18 amount of benefits payable, or any term, rate, condition, or type of 19 coverage may not be restricted, modified, excluded, increased, or 20 reduced on the basis of the sex, marital status, or sexual 21 orientation, or be restricted, modified, excluded, or reduced on the 22 basis of the presence of any disability of the insured or prospective 23 insured. 24 (2) It is an unfair practice to issue an adverse benefit 25 determination for gender affirming treatment when that care is 26 prescribed to an individual because of, related to, or consistent 27 with a protected gender identity characteristic under RCW 49.60.040 28 and is medically necessary. 29 (3) It is an unfair practice to apply categorical cosmetic or 30 blanket exclusions to gender affirming treatment. 31 (4) Facial feminization surgeries and facial gender affirming 32 treatment, such as tracheal shaves, hair electrolysis, and other care 33 such as mastectomies, breast reductions, and breast implants, or any 34 combination of gender affirming procedures, when prescribed as gender 35 affirming treatment and are medically necessary, shall not be 36 excluded as cosmetic. 37 (5) Health carriers must ensure that health care providers who 38 have experience prescribing or delivering gender affirming treatment 39 p. 9 SB 5313 conduct the utilization reviews pursuant to RCW 48.43.005(45) for any 1 claim for gender affirming treatment. 2 (6) If the health carrier does not have an adequate network for 3 gender affirming treatment, the health carrier shall ensure the 4 delivery of timely and geographically accessible medically necessary 5 gender affirming treatment at no greater expense than if the health 6 carrier had an in-network, geographically accessible provider 7 available. This includes, but is not limited to, providing case 8 management services to secure out-of-network gender affirming 9 treatment options that are available to the enrollee in a timely 10 manner within their geographic region. The enrollee shall pay no more 11 than the same cost sharing that the enrollee would pay for the same 12 covered services received from an in-network provider. 13 (7) Subsections (1) through (6) of this section apply to health 14 plans under chapter 74.09 RCW and all employee benefit plans pursuant 15 to RCW 41.05.075. 16 (8) Except as provided in RCW 48.43.0128, 48.44.220, or 17 48.46.370, this subsection does not prohibit fair discrimination on 18 the basis of sex, or marital status, or the presence of any 19 disability when bona fide statistical differences in risk or exposure 20 have been substantiated. 21 (9) For the purposes of this section, "gender affirming 22 treatment" means a service or product that a health care provider, as 23 defined in RCW 70.02.010, prescribes to an individual to address the 24 specific needs of that patient, to alleviate suffering, and/or 25 address a condition, related to an individual's protected gender 26 identity characteristics and/or allows the individual to acquire 27 primary and/or secondary sex characteristics more aligned with an 28 individual's gender identity. Gender affirming treatment includes, 29 but is not limited to, treatment for gender dysphoria. Gender 30 affirming treatment can be prescribed to two spirit, transgender, 31 nonbinary, and other gender diverse individuals. 32 --- END --- p. 10 SB 5313

CERTIFICATION OF ENROLLMENT SECOND SUBSTITUTE SENATE BILL 5313 Chapter 280, Laws of 2021 67th Legislature 2021 Regular Session HEALTH INSURANCE—GENDER AFFIRMING TREATMENT EFFECTIVE DATE: July 25, 2021 Passed by the Senate April 19, 2021 Yeas 30 Nays 19 DENNY HECK President of the Senate Passed by the House March 24, 2021 Yeas 57 Nays 41 LAURIE JINKINS Speaker of the House of Representatives CERTIFICATE I, Brad Hendrickson, Secretary of the Senate of the State of Washington, do hereby certify that the attached is SECOND SUBSTITUTE SENATE BILL 5313 as passed by the Senate and the House of Representatives on the dates hereon set forth. BRAD HENDRICKSON Secretary Approved May 12, 2021 3:01 PM FILED May 12, 2021 JAY INSLEE Governor of the State of Washington Secretary of State State of Washington AN ACT Relating to health insurance discrimination; amending RCW 1 49.60.178, 41.05.017, and 48.43.0128; adding a new section to chapter 2 74.09 RCW; and creating a new section. 3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON: 4 Sec. 1. RCW 49.60.178 and 2020 c 52 s 9 are each amended to read 5 as follows: 6 (1) It is an unfair practice for any person whether acting for 7 himself, herself, or another in connection with an insurance 8 transaction or transaction with a health maintenance organization to 9 cancel or fail or refuse to issue or renew insurance or a health 10 maintenance agreement to any person because of sex, marital status, 11 sexual orientation, race, creed, color, national origin, citizenship 12 or immigration status, or the presence of any sensory, mental, or 13 physical disability or the use of a trained dog guide or service 14 animal by a person with disabilities: PROVIDED, That a practice which 15 is not unlawful under RCW 48.30.300, 48.44.220, ((or)) 48.46.370, or 16 48.43.0128 does not constitute an unfair practice for the purposes of 17 this section. For the purposes of this section, "insurance 18 transaction" is defined in RCW 48.01.060, health maintenance 19 agreement is defined in RCW 48.46.020, and "health maintenance 20 organization" is defined in RCW 48.46.020. 21 SECOND SUBSTITUTE SENATE BILL 5313 AS AMENDED BY THE HOUSE Passed Legislature - 2021 Regular Session State of Washington 67th Legislature 2021 Regular Session By Senate Ways & Means (originally sponsored by Senators Liias, Randall, Darneille, Das, Dhingra, Frockt, Hunt, Keiser, Kuderer, Lovelett, Nguyen, Nobles, Pedersen, Robinson, Stanford, Van De Wege, and Wilson, C.) READ FIRST TIME 02/22/21. p. 1 2SSB 5313.SL (2) The fact that such unfair practice may also be a violation of 1 chapter 48.30, 48.43, 48.44, or 48.46 RCW does not constitute a 2 defense to an action brought under this section. 3 (3) The insurance commissioner, under RCW 48.30.300 and 4 48.43.0128, and the human rights commission, under chapter 49.60 RCW, 5 shall have concurrent jurisdiction under this section and shall enter 6 into a working agreement as to procedure to be followed in complaints 7 under this section. 8 Sec. 2. RCW 41.05.017 and 2019 c 427 s 21 are each amended to 9 read as follows: 10 Each health plan that provides medical insurance offered under 11 this chapter, including plans created by insuring entities, plans not 12 subject to the provisions of Title 48 RCW, and plans created under 13 RCW 41.05.140, are subject to the provisions of RCW 48.43.500, 14 70.02.045, 48.43.505 through 48.43.535, 48.43.537, 48.43.545, 15 48.43.550, 70.02.110, 70.02.900, 48.43.190, 48.43.083, 48.43.0128, 16 and chapter 48.49 RCW. 17 Sec. 3. RCW 48.43.0128 and 2020 c 228 s 9 are each amended to 18 read as follows: 19 (1) A health carrier offering a nongrandfathered health plan or a 20 plan deemed by the commissioner to have a short-term limited purpose 21 or duration, or to be a student-only plan that is guaranteed 22 renewable while the covered person is enrolled as a regular, full- 23 time undergraduate student at an accredited higher education 24 institution may not: 25 (a) In its benefit design or implementation of its benefit 26 design, discriminate against individuals because of their age, 27 expected length of life, present or predicted disability, degree of 28 medical dependency, quality of life, or other health conditions; and 29 (b) With respect to the health plan or plan deemed by the 30 commissioner to have a short-term limited purpose or duration, or to 31 be a student-only plan that is guaranteed renewable while the covered 32 person is enrolled as a regular, full-time undergraduate student at 33 an accredited higher education institution, discriminate on the basis 34 of race, color, national origin, disability, age, sex, gender 35 identity, or sexual orientation. 36 p. 2 2SSB 5313.SL (2) Nothing in this section may be construed to prevent ((an 1 issuer)) a carrier from appropriately utilizing reasonable medical 2 management techniques. 3 (3) For health plans issued or renewed on or after January 1, 4 2022: 5 (a) A health carrier may not deny or limit coverage for gender 6 affirming treatment when that treatment is prescribed to an 7 individual because of, related to, or consistent with a person's 8 gender expression or identity, as defined in RCW 49.60.040, is 9 medically necessary, and is prescribed in accordance with accepted 10 standards of care. 11 (b) A health carrier may not apply categorical cosmetic or 12 blanket exclusions to gender affirming treatment. When prescribed as 13 medically necessary gender affirming treatment, a health carrier may 14 not exclude as cosmetic services facial feminization surgeries and 15 other facial gender affirming treatment, such as tracheal shaves, 16 hair electrolysis, and other care such as mastectomies, breast 17 reductions, breast implants, or any combination of gender affirming 18 procedures, including revisions to prior treatment. 19 (c) A health carrier may not issue an adverse benefit 20 determination denying or limiting access to gender affirming 21 services, unless a health care provider with experience prescribing 22 or delivering gender affirming treatment has reviewed and confirmed 23 the appropriateness of the adverse benefit determination. 24 (d) Health carriers must comply with all network access rules and 25 requirements established by the commissioner. 26 (4) For the purposes of this section, "gender affirming 27 treatment" means a service or product that a health care provider, as 28 defined in RCW 70.02.010, prescribes to an individual to treat any 29 condition related to the individual's gender identity and is 30 prescribed in accordance with generally accepted standards of care. 31 Gender affirming treatment must be covered in a manner compliant with 32 the federal mental health parity and addiction equity act of 2008 and 33 the federal affordable care act. Gender affirming treatment can be 34 prescribed to two spirit, transgender, nonbinary, intersex, and other 35 gender diverse individuals. 36 (5) Nothing in this section may be construed to mandate coverage 37 of a service that is not medically necessary. 38 (6) By December 1, 2022, the commissioner, in consultation with 39 the health care authority and the department of health, must issue a 40 p. 3 2SSB 5313.SL report on geographic access to gender affirming treatment across the 1 state. The report must include the number of gender affirming 2 providers offering care in each county, the carriers and medicaid 3 managed care organizations those providers have active contracts 4 with, and the types of services provided by each provider in each 5 region. The commissioner must update the report biannually and post 6 the report on its website. 7 (7) The commissioner shall adopt any rules necessary to implement 8 subsections (3), (4), and (5) of this section. 9 (8) Unless preempted by federal law, the commissioner shall adopt 10 any rules necessary to implement subsections (1) and (2) of this 11 section, consistent with federal rules and guidance in effect on 12 January 1, 2017, implementing the patient protection and affordable 13 care act. 14 NEW SECTION. Sec. 4. A new section is added to chapter 74.09 15 RCW to read as follows: 16 (1) In the provision of gender affirming care services through 17 programs under this chapter, the authority, managed care plans, and 18 providers that administer or deliver such services may not 19 discriminate in the delivery of a service provided through a program 20 of the authority based on the covered person's gender identity or 21 expression. 22 (2) Beginning January 1, 2022: 23 (a) The authority and any managed care plans delivering or 24 administering services purchased or contracted for by the authority 25 may not apply categorical cosmetic or blanket exclusions to gender 26 affirming treatment. 27 (b) Facial feminization surgeries and facial gender affirming 28 treatment, such as tracheal shaves, hair electrolysis, and other care 29 such as mastectomies, breast reductions, breast implants, or any 30 combination of gender affirming procedures, including revisions to 31 prior treatment, when prescribed as gender affirming treatment, may 32 not be excluded as cosmetic. 33 (c) The authority and managed care plans administering services 34 purchased or contracted for by the authority may not issue an adverse 35 benefit determination denying or limiting access to gender affirming 36 treatment, unless a health care provider with experience prescribing 37 or delivering gender affirming treatment has reviewed and confirmed 38 the appropriateness of the adverse benefit determination. 39 p. 4 2SSB 5313.SL (d) If the authority and managed care plans administering 1 services purchased or contracted for by the authority do not have an 2 adequate network for gender affirming treatment, they shall ensure 3 the delivery of timely and geographically accessible medically 4 necessary gender affirming treatment at no greater expense than if 5 they had an in-network, geographically accessible provider available. 6 This includes, but is not limited to, providing case management 7 services to secure out-of-network gender affirming treatment options 8 that are available to the enrollee in a timely manner within their 9 geographic region. The enrollee shall pay no more than the same cost 10 sharing that the enrollee would pay for the same covered services 11 received from an in-network provider. 12 (3) For the purposes of this section, "gender affirming 13 treatment" means a service or product that a health care provider, as 14 defined in RCW 70.02.010, prescribes to an individual to support and 15 affirm the individual's gender identity. Gender affirming treatment 16 includes, but is not limited to, treatment for gender dysphoria. 17 Gender affirming treatment can be prescribed to two spirit, 18 transgender, nonbinary, and other gender diverse individuals. 19 (4) Nothing in this section may be construed to mandate coverage 20 of a service that is not medically necessary. 21 (5) The authority shall adopt rules necessary to implement this 22 section. 23 NEW SECTION. Sec. 5. This act shall be known and cited as the 24 Gender Affirming Treatment Act. 25 Passed by the Senate April 19, 2021. Passed by the House March 24, 2021. Approved by the Governor May 12, 2021. Filed in Office of Secretary of State May 12, 2021. --- END --- p. 5 2SSB 5313.SL