New Hampshire Medicaid money may now be used for gender reassignment surgeries, after legislators on the state’s administrative rules committee narrowly approved a change Thursday.

Submitted by the Department of Health and Human Services, the change eliminates a provision of the rules that stipulates “sex change operations shall be non covered.”

The new rules will allow Medicaid recipients in the state’s managed-care program to receive funding for surgery on a case-by-case basis, determined by the state provider based on “medical necessity.”

Children under 18 may also receive funding for the surgeries, but only with prior consent from parents and guardians, according to DHHS.

The rule change does not apply to people covered on the state’s Medicaid expansion program, who receive care from private insurers; that care is up to each individual insurers, according to DHHS Commissioner Jeffrey Meyers.

In submitting the rule change, DHHS said the move was necessary to bring the department in line with Section 1557 of the Affordable Care Act, which prevents gender discrimination within any health program or activity receiving federal Medicaid funding.

“We believe we are acting in response to a law enacted by Congress that prohibits discrimination,” Meyers told the committee.

DHHS has set aside $286,000 in fiscal year 2018 to cover the cost of potential surgeries, based on an analysis of cost and need by Milliman, an actuarial firm. Half of that – $143,000 – will come from state money, with the rest from the federal government, according to the 50-50 Medicaid reimbursement model, according to Meyers.

The department had received approval from the Joint Health Reform Oversight Committee in September 2016, and has been preparing to implement the rule in recent months, Meyers said.

But DHHS needed final approval Thursday from Joint Legislative Committee on Administrative Rules, a 10-member oversight committee comprising House and Senate members.

Thursday’s vote came after two hours of at-times emotional testimony. Some said the money would detract from those with immediate health problems. Others contended it was a necessary move to address the risk of suicide for transgender teens. Meyers contended that failure to implement the change could open the state up for legal challenges.

At the end of testimony, Sen. Kevin Avard, R-Nashua, advanced a motion to object to the rule change on the basis that the department’s fiscal note did not adequately account for the rule change’s real cost. That motion failed after the committee deadlocked, 5-5.

A second motion allowing the rules by Senator Dan Feltes, D-Concord, passed, 6-4, after Rep. Carol McGuire, R-Epsom – who had voted for the motion to object – reversed course.

Feltes’s motion included a caveat that should the administration of President Donald Trump change the Affordable Care Act to remove the prohibition on discrimination, DHHS must engage in an emergency rule-making process with the committee to amend the rule.

Transgender activists praised Thursday’s decision.

“I am really, really thrilled,” said Linds Jakows, campaign manager for Freedom New Hampshire who is transgender. “Today is a really good day for transgender Granite Staters being free from discrimination and medical care.”

(Ethan DeWitt can be reached at, or on Twitter at @edewittNH.)

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N.H. Medicaid funds to be used for gender reassignment surgeries