On March 19, 2013, the Colorado Division of Health Insurance released a bulletin declaring that Colorado insurers are prohibited from discriminating based on sexual orientation, this includes heterosexuality, homosexuality, bisexuality and transgender. The Division of Insurance does not make state law but issues guidance or policy statements that interpret already existing state laws. Under Colorado statute, a Colorado insurer is prohibited from “inquiring about or making an investigation concerning, directly or indirectly, an applicant’s, an insured’s, or a beneficiary’s sexual orientation in … [a]n application for coverage.” Colo. Rev. Stat. § 10-3-1104(1)(f)(VI). Further, state law prohibits an insurance company from “using information about gender, marital status, medical history, occupation, . . . to determine sexual orientation” Colo. Rev. Stat. § 10-3-1104(1)(f)(VII). Finally, it is unlawful for any insurance company to use “sexual orientation in the underwriting process or in the determination of insurability.” Col. Rev. Stat. § 10-3-1104. In reviewing these laws, it is clear the basic premise of the bulletin, that discrimination based on sexual orientation is prohibited, is not new but the bulletin serves to highlight for Colorado’s insurers exactly what types of actions are prohibited under these already existing laws.
Specifically, the bulletin states that under these laws, a Colorado insurer may not:
1). impose any differential in premium rates or charges with regard to an applicant or covered person’s sexual orientation;
2). designate an individual’s sexual orientation as a pre-existing condition for the purpose of denying or limiting coverage;
3). deny, exclude, or otherwise limit coverage for medically necessary services, as determined by an individual’s medical provider, if the item or service would be provided based on current standards of care to another individual without regard to their sexual orientation.
One of the most significant impacts this bulletin is expected to have is on the transgender community. Transgender individuals are often denied insurance coverage based on either their transgender status or for transgender-related services, in spite of the fact that the American Medical Association, American Psychological Association, American Psychiatric Association and the Colorado Medical Society have issued statements against discrimination in public and private organizations, including in relation to the medical care transgender people receive.
Some examples of specific insurance coverage requests that may be implicated by this bulletin is that an insurer who covers breast-reduction surgery to relieve back pain cannot deny the same coverage for a transgender person if the medical provider deems it medically necessary. The American Medical Association has stated that it generally considers such treatment medically necessary for treatment of gender identity disorder. Other examples that have arisen in the past are the inability of transgender patients who identify as male to receive insurance coverage for annual gynecological exams and the inability of transgender patients to receive insurance coverage for hormone-therapy treatment while the same treatment is covered for conditions of non-transgender patients.
It is important to note, however, that the laws addressed in this bulletin only apply to Colorado insurers. An employer who is based outside of Colorado likely also purchases their employees’ health insurance outside of Colorado and therefore, is not governed by Colorado’s insurance laws. It also does not apply to self-funded insurance plans. Even with these limitations, though, it remains an example of Colorado doing what is within its power to protect the LGBT community from discrimination, and this is an area in which existing laws have been lacking in their application and protection.