CODY FLACK, et al., Individually and on behalf of all others similarly situated v. WISCONSIN DEPARTMENT OF HEALTH SERVICES, et al.
18-cv-309-wmc
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN
OPINION AND ORDER
Over a year ago, this court preliminarily enjoined enforcement of
injunctive relief. (Pls.’ Mot. Summ. J. (dkt. #151) 1-2.) For the reasons that follow, plaintiffs’ motion will be granted.2
UNDISPUTED FACTS3
A. Gender Dysphoria
1. Diagnosis
At its most basic level, gender identity is understood by the medical profession to
According to plaintiffs’ experts, one‘s gender identity is an immutable characteristic. Defendants dispute this. In particular, defendants argue that “[o]ne‘s self-awareness as male or female changes gradually during infant life and childhood” based on “interactions with parents, peers, and environment,” noting that “[n]ormative psychological literature” fails “[to] address if and when gender identity becomes crystallized and what factors contribute to the development of a gender identity that is not congruent with the gender of rearing.” (Defs.’ Resp. to Pls.’ PFOF (dkt. #183) ¶¶ 35-36 (quoting Endocrine Society‘s Clinical Practice Guidelines (dkt. #166-9) 7).)
Regardless of its origins, there is now a consensus within the medical profession that gender dysphoria is a serious medical condition, which if left untreated or inadequately treated can cause adverse symptoms, such as anxiety, depression, serious mental distress, self-harm, and suicidal ideation, all of which can cause social and occupational dysfunction. DSM-5 contains the psychiatric consensus as to its definition, diagnostic criteria and features:
Gender dysphoria refers to the distress that may accompany the incongruence between one‘s experienced or expressed gender and one‘s assigned gender. Although not all individuals will experience distress as a result of such incongruence, many are distressed if the desired physical interventions by means of hormones and/or surgery are not available. The current term is more descriptive than the previous DSM-IV term gender identity disorder and focuses on dysphoria as the clinical problem, not identity per se.
(DSM-5 (dkt. #21-1) 5.)4 Not every transgender person suffers from gender dysphoria,
2. Treatment
The World Professional Association of Transgender Health outlines the clinical guidelines for treating gender dysphoria in its Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People, 7th Edition (2011) (the “WPATH Standards of Care“).5 The WPATH Standards of Care identify psychotherapy, hormone therapy, and a number of surgical procedures as accepted treatment options for gender dysphoria. In 2017, the Endocrine Society also published clinical practice guidelines addressing hormone treatments for gender dysphoria.6
Dr. Julie Sager, DHS‘s medical director for Wisconsin Medicaid‘s Bureau of Benefits Management (“BBM“) from 2016 until April 24, 2019, considered both sources to be generally accepted in the medical community and to outline the appropriate standards for assessing the medical necessity of treatment for gender dysphoria. Transition-related medical interventions have the following goals: (1) preventing or eliminating the development of unwanted secondary sex characteristics of the assigned sex; (2) promoting or reconstructing the development of desired secondary sex characteristics of the sex associated with the patient‘s gender identity; (3) reducing symptoms of gender dysphoria; and (4) enhancing the patient‘s ability to “pass” as the sex associated with the patient‘s gender identity, decreasing harassment, mistreatment, and other discrimination to which transgender people are subjected because they are gender nonconforming.
The WPATH Standards of Care state that “sex reassignment surgery is effective and medically necessary,” while also recognizing that many transgender people who are diagnosed with gender dysphoria will not require surgery. (WPATH Standards of Care (dkt. #166-8) 61 (capitalization altered).) “While most professionals agree that genital surgery and mastectomy cannot be considered purely cosmetic, opinions diverge as to what degree other surgical procedures (e.g., breast augmentation, facial feminization surgery) can be considered purely reconstructive.” (Id. at 65.) For appropriate candidates, however, major medical organizations, including the American Medical Association, Endocrine Society, and American Psychiatric Association view gender-confirming surgeries as medically accepted, safe, and effective treatments for severe gender dysphoria. Even defendants acknowledge that DHS does not consider surgical treatments for gender
dysphoria to be experimental. (See Prelim. Injunction Op. & Order (dkt. #70)
B. Wisconsin Medicaid
Medicaid, a joint federal-state program, was established in 1965 under
Defendant Wisconsin Department of Health Services (“DHS“) is responsible for administering the Wisconsin Medicaid program. It receives Medicaid funding from the federal government, including reimbursement for over half the state‘s Medicaid expenditures from the U.S. Department of Health and Human Services.7 Defendant Andrea Palm serves as DHS‘s secretary-designee, making her responsible for implementing the Medicaid Act consistent with both state and federal requirements. At the state level, Wisconsin Medicaid is governed by
Wisconsin Medicaid beneficiaries receive health care coverage through either a fee-
for-service plan administered directly by DHS or an HMO Medicaid plan offered through third-party managed care organizations. For the fee-for-service plans, DHS uses its own staff to review prior authorization requests, instead of using a third-party administrator. The prior authorization staff typically uses DHS‘s published guidelines to make clinically appropriate and coverage determinations for requested services. Where published guidelines do not exist -- as is currently true here for gender-confirming surgeries -- medical doctors in BBM, which is part of DHS‘s Division of Medicaid Services, review the request under statutory and regulatory limits.8 Dr. Lora Wiggins is BBM‘s chief medical officer and until April 24, 2019, Dr. Julie Sager served as BBM‘s medical director.
The vast majority -- approximately 80% -- of Wisconsin Medicaid beneficiaries are enrolled in HMO Medicaid plans, which are offered by the following managed care organizations: (1) Blue Cross Blue Shield of Wisconsin; (2) Care Wisconsin Health Plan; (3) Children‘s Community Health Plan; (4) Dean Health Plan, Inc.; (5) Group Health Cooperative of Eau Claire; (6) Group Health Cooperative of South Central Wisconsin; (7) Independent Health Care Plan; (8) MHS Health Wisconsin; (9) MercyCare Insurance Company; (10) Molina Healthcare of Wisconsin; (11) Network Health Plan; (12) Quartz Health Solutions, Inc.; (13) Security Health Plan; (14) Trilogy Health Insurance, Inc.; and
(15) UnitedHealthcare Community Plan.9 These
C. Challenged Exclusion
1. Overview
The Medicaid regulations were amended to include
of sexual anatomy or characteristics” and “[t]ranssexual surgery.”
Even though managed care organizations offering Wisconsin Medicaid plans are primarily responsible for enforcing the Challenged Exclusion by denying their plan members’ prior authorization requests for services and treatment, DHS has not provided the managed care organizations formal guidance on how to interpret the Challenged Exclusion. Participating managed care organizations have denied coverage to transgender beneficiaries for gender-confirming treatments, including hormone therapy, surgery and related services under the Challenged Exclusion.
2. DHS‘s Evaluation of the Exclusion
When the Challenged Exclusion went into effect on February 1, 1997, DHS‘s predecessor, the Wisconsin Department of Family and Health Services, opined that the excluded services were “medically unnecessary” and that the Challenged Exclusion was
“expected to result in nominal savings for state government.”13 (Clearinghouse Rule 96-154 (dkt. #21-12) 2, 3; Fiscal
Since the filing of this lawsuit, the only investigations into the financial impact on DHS, Wisconsin Medicaid or the State of Wisconsin from enforcing, amending or eliminating the Challenged Exclusion were the August and November 2018 reports of David Williams, submitted in connection with this lawsuit. Similarly, the only investigation into the safety or efficacy of the medical or surgical treatments for gender dysphoria performed by DHS since February 1, 1997, were the reports of Lawrence Mayer, Michelle Ostrander, Chester Schmidt and Daniel Sutphin, also submitted in connection with this lawsuit. In contrast, DHS‘s own medical providers, the individuals charged with making clinical coverage determinations for Wisconsin Medicaid, acknowledge that
gender-confirming hormone and surgical treatments for gender dysphoria can be medically necessary and that the Challenged Exclusion conflicts with current medical practice.15
Finally, since its enactment, neither DHS nor its predecessor have studied the public health effects or costs of enforcing, amending or eliminating the Challenged Exclusion outside of this lawsuit. Nor is DHS aware of information indicating that it formally considered amending or eliminating the Challenged Exclusion between February 1, 1997, and July 17, 2016. DHS is also unaware of information indicating that it reviewed or considered the efficacy of the Challenged Exclusion following the publication of Version 7 of the WPATH Standards of Care in 2011 or DSM-5‘s information about the treatment of gender dysphoria following its publication in 2013. For purposes of this lawsuit, defendants estimate that removing the Challenged Exclusion and covering gender-confirming surgeries would cost between $300,000 and $1.2 million annually. There is no dispute that these amounts are actuarially immaterial as they are equal to approximately 0.008% to 0.03% of the State‘s $3.9 billion share of Wisconsin Medicaid‘s $9.7 billion annual budget.
3. Enforcement
Since January 1, 2009, DHS has denied Wisconsin Medicaid coverage to ten fee-for-service beneficiaries; since 2014, HMOs administering Wisconsin Medicaid have denied numerous requests for gender-confirming surgical procedures, hormone treatments
and other medical treatments and services. Each of these denials was based on application of the Challenged Exclusion, since the denied procedures are covered by Wisconsin Medicaid when deemed medically necessary for other conditions.
Following this letter, BBM received no further direction from DHS management,
and BBM‘s clinical staff never received written clarification about what procedures were subject to the Challenged Exclusion. As a result, Dr. Sager and Dr. Wiggins concluded that the best option was to deny all requests for surgery and related gender-conforming hormones to comply with the Department‘s directives to the HMOs, even though doing so was contrary to their clinical opinion that the treatments could be both medically necessary and acceptable under current medical standards.
On January 4, 2017, following a preliminary injunction from the Northern District of Texas enjoining part of the “Section 1557 Final Rule,” the former director of Wisconsin Medicaid, Michael Heifetz, wrote contract administrators at Wisconsin managed care organizations, informing them that Wisconsin Medicaid would continue to enforce the Challenged Exclusion. (Jan. 4, 2017 Letter (dkt. #165-1) 1.) In part, the letter advised that:
The Department will continue to abide by its own regulations related to covered services under Medical Assistance/Medicaid (“MA“). Specifically, under the Department‘s MA regulations, transsexual surgery and medically unnecessary hormone therapy are not covered services. (See
Wis. Admin. Code §§ DHS 107.03(23) , (24);107.10(4)(p) ). . . . The Department will continue to make coverage decisions under its regulations, and will not reimburse entities for procedures that fall outside the Department‘s regulations.
(Id.)
As a result, Wisconsin Medicaid‘s current policy under the Challenged Exclusion is to exclude from coverage certain medical procedures, services or treatments that are deemed medically necessary by a beneficiary‘s medical provider to treat gender dysphoria, even though those same procedures are covered when deemed medically necessary to treat
other conditions. These treatments include orchiectomy, penectomy, vaginoplasty, mastectomy, reduction mammoplasty, breast reconstruction, hysterectomy, oophorectomy, and salingo-oophorectomy. The Challenged
In 2019, Dr. Julie Sager sought to have a formal discussion with DHS leadership about providing Wisconsin Medicaid coverage for gender-confirming treatment. She was asked to prepare a proposal about an appropriate policy. In preparation for these discussions, she requested and received a spreadsheet from BBM‘s medical coder identifying gender-confirming procedures and the coverage for those procedures when treating conditions other than gender dysphoria. A large majority of those procedures are covered by Wisconsin Medicaid when not treating gender dysphoria. (See generally Gender Reassignment Procedure Code List (dkt. #166-10).)17
policy changes had not occurred.
Finally, DHS applies the Challenged Exclusion only to beneficiaries who are at least 21 years old. For younger beneficiaries, DHS considers requests for coverage under the Early and Periodic Screening, Diagnostic, and Treatment (“EPSDT“) provisions. See
D. Named Plaintiffs18
Plaintiffs Cody Flack, Sara Ann Makenzie, Marie Kelly and Courtney Sherwin are all adult, transgender, residents of Wisconsin enrolled in Wisconsin Medicaid. They all suffer from gender dysphoria. Each of their individual treatment providers have concluded that hormone therapy and gender-confirming surgery are medically necessary. After nevertheless being denied coverage under the Challenged Exclusion, they each joined this suit on behalf of themselves and a class of similarly-situated plaintiffs.
Cody Flack, one of the two originally named plaintiffs, sought Medicaid coverage for chest reconstructive surgery that his treatment providers deemed medically necessary.
His prior authorization request was denied and then affirmed on appeal
After entry of the court‘s preliminary injunction and Dr. Sager‘s finding that the surgery was medically necessary, plastic surgeon Clifford King performed Cody‘s double mastectomy and male chest reconstruction on September 25, 2018. Following surgery, Cody‘s gender dysphoria has greatly diminished. He was relieved that his outward appearance matched his male gender and that he would no longer be misgendered because of his breasts. He began looking forward to going out in public. He felt “more upbeat and hopeful about [his] life in general.” (Flack Suppl. Decl. (dkt. #91) ¶ 4.) He is considering obtaining a phalloplasty to further his gender transition.
Sara Ann Makenzie, the other originally named plaintiff, first encountered the Challenged Exclusion when she sought a chest reconstruction prescribed by her doctors. She contacted DHS to inquire about Wisconsin Medicaid coverage for the procedure, but
was informed that it was not a covered benefit.20 (Makenzie Decl. (dkt. #23) ¶ 19.) She then obtained a personal loan from her bank to pay for the surgery out-of-pocket. UW Health plastic surgeon Venkat Rao performed the surgery in August 2016. She contends that this surgery helped alleviate her gender dysphoria. After her medical providers recommended that she obtain a bilateral orchiectomy and vaginoplasty to create female-appearing external genitalia, Sara Ann was twice told Wisconsin Medicaid would not cover the surgery. Following this court‘s preliminary injunction in July 2018, Sara Ann‘s HMO, Care Wisconsin, reviewed her prior authorization request for coverage for genital reconstruction surgery and related procedures, determining that the surgeries were medically necessary and coverage for the surgery was appropriate.
Since 2011, plaintiff Marie Kelly has taken feminizing hormones to treat her gender dysphoria and to further her gender transition.21 While the hormones have helped, she still suffers “exacerbated” gender
medically necessary. After inquiring whether Wisconsin Medicaid would provide coverage for these procedures -- including as recently as in August 2018 -- Marie was repeatedly told that they were not covered because of the Challenged Exclusion. Since then, Marie has been unable to obtain these treatments for her gender dysphoria, and she cannot afford to pay for them herself.
In March 2018, plaintiff Courtney Sherwin began taking feminizing hormones under the supervision of her primary care physician. She has been denied coverage for some of the hormone treatments prescribed by her doctors under the Challenged Exclusion, forcing her to pay out-of-pocket for them. Moreover, while the hormones have helped, Courtney continues to suffer from severe gender dysphoria because of her male-appearing body and her male-sounding voice, as well as the harassment they engender. Courtney‘s medical providers have concluded that a genital reconstruction, consisting of an orchiectomy, penectomy and vaginoplasty, and a breast augmentation are medically necessary to treat her gender dysphoria. They also believe that the orchiectomy is particularly urgent because it would stop her body from producing testosterone and alleviate the adverse side effects from her testosterone-blocking spironolactone. Her current HMO, Quartz, has denied coverage for these gender-confirming surgical treatments based on the Challenged Exclusion, and she cannot afford to pay for these procedures herself.
Although their exact number is unknowable, other transgender Wisconsin Medicaid beneficiaries with gender dysphoria have also been denied coverage for gender-confirming surgeries under the Challenged Exclusion (or at least are likely to have been discouraged
from applying because of it). Defendants concede for purposes of summary judgment that there are potentially hundreds of transgender Wisconsin Medicaid beneficiaries (if not more) who may be denied gender-confirming surgeries and related hormone treatments during their lifetimes if the Challenged Exclusion remains in place. For example, Lexie Vordermann is a 19-year-old transgender Wisconsin Medicaid beneficiary who has been denied coverage for an orchiectomy by her HMO, Quartz, in early 2018 because of the Challenged Exclusion. In September 2018, her doctor submitted a second prior authorization request, but Quartz denied it as well, citing the Challenged Exclusion. While DHS has maintained that the Challenged Exclusion does not apply to beneficiaries under 21 years of age, Lexie‘s denials have been based on the Challenged Exclusion.
Another class member, Emma Grunenwald-Ries, a transgender Wisconsin Medicaid beneficiary, experiences significant gender dysphoria related to her voice, chest and genitalia. She is seeking a number of surgeries recommended by her primary care physician, including facial feminization, chest reconstruction, and genital reconstruction. UW Health surgeon Katherine Gast agreed to perform genital reconstruction surgery, but has not submitted a prior authorization request, believing it would be denied because of the Challenged Exclusion. Emma suffers from daily anxiety, worry, and stress about her inability to obtain treatment. She is also upset that the Challenged Exclusion stands in the way of her completing her medical transition.
I. Plaintiffs’ Motion to Strike
Before turning to plaintiffs’ motion for summary judgment, the court must first address their lengthy motion to strike the declaration and exclude testimony of defense expert Michelle Ostrander, Ph.D. (Mot. to Strike (dkt. #192) 1.) Plaintiffs raise three arguments: (1) failure to comply with
While Plaintiffs’ motion will be denied, the actual relevance of Ostrander‘s “opinion” is quite limited. First, Ostrander expressly “take[s] no position on the medical necessity of any particular medical procedure or service for any particular patient, including the named plaintiffs in this case” (Ostrander Decl. (dkt. #188) ¶ 12), something that should be obvious on its face given that she has no medical degree. Likewise, she makes no claim of any medical expertise, including treatment methods for gender dysphoria, nor did she review DSM-5, WPATH or other standards of care for gender dysphoria. (See Ostrander Dep. (dkt. #206) 84:25-85:25 (“I believe the DSM-5 is the current standard for diagnosis. As far as the specific for those, I‘m not familiar with those off the top of my
head.“; “I am aware of the WPATH standards of care for the treatment of gender dysphoria; but as to the specifics, I could not speak to those.“); see also id. at 109:10-111:9 (relying on a report‘s summary of the difference between “gender identity disorder” and “gender dysphoria,” adding that the diagnostic criteria are “outside of [her] area of expertise“).)
Second, even accepting her declaration on its face, she does nothing more than compile “[i]n [her] role as Product Manager at Hayes, Inc.,” various “custom research” prepared largely by unnamed others at Hayes for unnamed “healthcare providers, payers, [or] policy makers” which purport to analyze “the available scientific evidence regarding the efficacy and safety of” “Sex Reassignment Surgery” and “Ancillary Procedures and Services for the treatment of Gender Dysphoria” in 2014 and 2018. (Ostrander Decl. (dkt. #188) ¶¶ 3, 11-9.) While she “worked with analysts in authoring and developing the August 2018 report and reviewed and approved the report prior to its publication,” she had no role in developing the other three reports. (See id. ¶ 9.) “The analyses and conclusions” found in these reports, attached to her barebones declaration, “represent [her] professional opinion about the available scientific evidence regarding the efficacy and safety of the medical procedures and services . . . as of the dates of those documents.” (Id. ¶ 11.) Ostrander‘s declaration does not explain the methodology for assigning grades, although she provides some detail during her deposition. (Ostrander Dep. (dkt. #206) 50:15-51:23; 122:20-123:8.)
Third, whatever the evidentiary value these private analyses may have, it pales in comparison to that of the peer reviewed studies they purport to criticize, and, more importantly, to the consensus of medical professionals as to the efficacy and safety
Fourth, and finally, Ostrander‘s “opinions” are entirely unhelpful to the issue of fact here: whether gender-confirming surgery and related hormones are now a generally accepted form of medical treatment for gender dysphoria. Even accepting Ostrander‘s conclusion that studies provide “very low” quality evidence, that does not change the fact that the larger medical community considers these treatments to be acceptable. (See Am. Med. Assoc. (dkt. #21-5) 2 (“[M]edical and surgical treatments for gender dysphoria, as determined by shared decision making between the patient and physician, are medically necessary as outlined by generally-accepted standards of medical and surgical practice.“); Am. Endocrine Soc‘y (dkt. #21-9) 3 (“Medical intervention for transgender individuals (including both hormone therapy and medically indicated surgery) is effective, relatively safe (when appropriately monitored), and has been established as the standard of care.“).) Further, it is somewhat perplexing that at summary judgment, defendants relied only on the “opinions” of a lone, non-medical, professional researcher, rather than on the previously filed declarations of the few medical professionals who had questioned the efficacy and safety of gender-confirming care. (See Sutphin Decl. (dkt. #118); Schmidt Decl. (dkt. #56); Mayer Decl. (dkt. #55-4); Mayer Rpt. (dkt. #55-1).) For all these reasons, Ostrander‘s “opinions” are of limited value. Even so, plaintiffs’ motion to strike is denied.
II. Summary Judgment
Summary judgment is appropriate where the moving party: (1) “shows that there is no genuine dispute as to any material fact” and (2) it “is entitled to judgment as a matter of law.”
A. Affordable Care Act
Plaintiffs contend that the Challenged Exclusion violates § 1557 of the Affordable Care Act by unlawfully discriminating on the basis of sex and ask the court not to change its analysis from that undertaken at the preliminary injunction stage of this litigation. (Summ. J. Br. (dkt. #152) 20.) In response, defendants merely repeat their creative “Spending Clause” argument: “Wisconsin could not have understood that Title IX would impose on it a new anti-discrimination requirement when this federal law passed” because “the Seventh Circuit did not hold that sexual orientation and transgender status discrimination were covered under Title VII and Title IX, respectively, until decades after the enactment of Title IX.” (Opp‘n (dkt. #182) 5, 7-9.)
The court found defendants’ argument less than persuasive before and that has not changed. (Prelim. Injunction Op. & Order (dkt. #70) 29-30 (“Perhaps defendants’ least persuasive, though most creative, argument is that § 1557 cannot be read to cover transgender status without violating the Spending Clause of the United States Constitution because ‘Wisconsin could have had no idea that this interpretation would someday prevail when it chose to accept federal Medicaid funding.’ Nonsense.” (internal citation omitted)).)
B. Medicaid Act
Plaintiffs next contend that the Challenged Exclusion violates the Availability and Comparability Provisions of the Medicaid Act by denying coverage for medically necessary treatments for gender dysphoria despite those treatments being covered for other diagnoses. (Summ. J. Br. (dkt. #152) 30-37.) In response, defendants argue that the exclusion of “transsexual surgery” and associated hormones is entitled to “[s]ignificant deference” because there is evidence that these treatments are unproven and thus “not medically necessary” under
As an initial matter, “[a]lthough participation in Medicaid is optional, once a state has chosen to take part . . . it must comply with all federal statutory and regulatory requirements.” Bontrager v. Ind. Family and Soc. Servs. Admin., 697 F.3d 604, 605 (7th Cir. 2012) (quoting Miller ex rel Miller v. Whitburn, 10 F.3d 1315, 1316 (7th Cir. 1993)). Accordingly, while a state “provid[ing] federally subsidized medical assistance to low- income individuals and families” “may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures,” id. at 605, 608 (internal citations and quotation marks omitted), these limits must be “‘reasonable’ and ‘consistent with the objectives’ of the [Medicaid] Act,” Rush v. Parham, 625 F.2d 1150, 1155 (5th Cir. 1980) (quoting Beal v. Doe, 432 U.S. 438, 444 (1977)).
Still, as defendants point out, states have “significant discretion to decide which treatments to cover” and the Medicaid Act does not require participating states to fund experimental procedures as “such treatments are ‘medically un necessary.‘” Miller, 10 F.3d at 1318, 1321 (quoting Rush, 625 F.2d at 1156) (emphasis in original). Indeed, in Rush, the Fifth Circuit held that “Georgia‘s definition of medically necessary services can reasonably exclude experimental treatment” when confronted with plaintiff‘s complaint that Georgia refused to pay for her “transsexual surgery” that was prescribed by her doctor. 625 F.2d at 1156. As the Seventh Circuit has explained, however, “the best indicator that a procedure is experimental is its rejection by the professional medical community as an unproven treatment“; put another way, “[i]f ‘authoritative evidence’ exists that attests to a procedure‘s safety and effectiveness, it is not ‘experimental.‘” Miller, 10 F.3d at 1320.
Here, whatever the Fifth Circuit held in 1980, defendants’ assertion that “transsexual surgery” and the associated hormone treatments are not medically necessary is no longer reasonable. Even at the time the Challenged Exclusion became effective in 1997, DHS‘s predecessor did not conclude that the excluded services were experimental, ineffective or unsafe. Moreover, at the time of implementation, DHS‘s predecessor conducted no systematic study or review of the available medical literature to conclude that the excluded services were not medically necessary, nor can defendants point to any now. To the contrary,
Perhaps most compelling, when not constrained by the Challenged Exclusion, even DHS through BBM medical personnel found gender-confirming surgery to be medically necessary for some Medicaid patients, falling in line with the vast majority of states and the American Medical Association, Endocrine Society, American Psychiatric Association, and other medical organizations, all of which have already endorsed gender-confirming surgeries as medically accepted, safe, and effective treatments for gender dysphoria.
Defendants’ arguments to the contrary are simply unpersuasive. (Opp‘n (dkt. #182) 13-22.) First, defendants rely on two federal circuit court decisions that upheld state prohibitions on coverage for treatment of gender-confirming surgery. (Id. at 13-14 (citing Smith v. Rasmussen, 249 F.3d 755, 760-61 (8th Cir. 2001); Rush, 625 F.2d at 1154-57).) The state of medical knowledge has evolved as to the treatment of gender dysphoria, making these earlier cases medically suspect. Compare Smith, 249 F.3d at 760 (noting “the lack of consensus in the medical community” about sex-reassignment surgery) with Good v. Iowa Dept. of Human Servs., 924 N.W.2d 853, 857 (Iowa 2019) (noting uncontradicted testimony establishing “the accepted standards of medical care to alleviate gender dysphoria . . . involve the following options: socially transitioning to live consistently with one‘s gender identity, counseling, hormone therapy, and gender-affirming surgery to conform one‘s sex characteristics to one‘s gender identity“); Hicklin v. Precynthe, No. 4:16-cv-01357-NCC, 2018 WL 806764, at *3 (E.D. Mo. Feb. 9, 2018) (noting testimony establishing that the WPATH Standards of Care are “the internationally recognized guidelines for the treatment of persons with gender dysphoria“). Indeed, even the Rush court recognized that “if defendants simply denied payment for the proposed surgery because it was transsexual surgery [as opposed to being ‘experimental’ or ‘inappropriate‘], Georgia should now be required to pay for the operation, since a ‘state may not arbitrarily deny or reduce the amount, duration, or scope of a required service . . . solely because of the diagnosis, type of illness, or condition.‘” 625 F.2d at 1156 n.12 (quoting
Defendants also point to a 2016 Centers for Medicare and Medicaid Services Report, the Hayes, Inc. reports attached to the Ostrander Declaration, and two more recent circuit court decisions rejecting prisoners’ Eighth Amendment claims for gender-confirming surgery as evidence of “conflicting views about the efficacy of treatment.” (Opp‘n (dkt. #182) 14-22.) However, these documents do not create a material dispute of fact in large part because they were not relied on by DHS in evaluating the Challenged Exclusion, either before or after it became effective.
Moreover, the two circuit court decisions are factually and legally distinguishable. Although decided in 2014, the First Circuit sitting en banc in Kosilek, 774 F.3d 63 (1st Cir. 2014), was actually considering an evidentiary record from 2006, at which time medical experts disagreed as to whether anything less than a “sex reassignment surgery” for a Massachusetts inmate‘s gender dysphoria would constitute such inadequate medical care as to be cruel
In Gibson v. Collier, 920 F.3d 212 (5th Cir. 2019), petition for cert. filed, a panel of the Fifth Circuit purported to follow the reasoning of Kosilek, by finding that the Texas Department of Criminal Justice (“TDCJ“) could adopt a blanket prohibition on “sex reassignment surgeries,” without regard to any individualized assessment of prisoners, without offending the Eighth Amendment. As the dissent explains, the majority‘s reasoning is difficult to follow given some procedural anomalies, not least of which was the pro se plaintiff Gibson‘s (and later his appointed appellate counsel‘s) decision not to challenge what the Fifth Circuit described as “respected medical experts fiercely question[ing] whether sex reassignment surgery, rather than counseling and hormone therapy, is the best treatment for gender dysphoria.” Gibson, 920 F.3d at 215, 220, 223.
The oddest part of the Gibson decision is that the only “evidence” on this issue came not from the record in that case, but rather from adoption of the same 2006 expert testimony relied upon by the First Circuit in Kosilek. Gibson, 920 F.3d at 221-25. Regardless, based on Gibson‘s failure to establish that surgery “is so universally accepted” that its denial in favor of mental health counseling and hormone therapy “amounts to deliberate indifference,” the Fifth Circuit found no Eighth Amendment violation. Id. at 220-21. More specifically, the court found that “it cannot be cruel and unusual to deny treatment that no other prison has ever provided -- to the contrary, it would only be unusual if a prison decided not to deny such treatment.” Id. at 216 (emphasis original).
Even if the reasoning of Gibson, or at least Kosilek (which only endorsed the right of a prison to deny reassignment surgery after an individualized assessment of the inmate‘s treatment needs for gender dysphoria), were adopted as law by the Seventh Circuit in applying an Eighth Amendment “cruel and unusual” standard, both opinions hold the plaintiff to a much higher burden of proof and rely on medical testimony now some thirteen years old.24
As noted above, any attempt by defendants or their experts to contend that gender confirming care -- including surgery -- is inappropriate, unsafe, and ineffective is unreasonable, in the face of the existing medical consensus. The few documents cited by defendants do not change the unreasonableness of the decision-making process or its conclusion. Accordingly, the state‘s adoption, or at least continued enforcement, of the Challenged Exclusion is unreasonable as a matter of law and not entitled to deference. See Lankford v. Sherman, 451 F.3d 496, 511 (8th Cir. 2006) (“While a state has discretion to determine the optional services in its Medicaid plan, a state‘s failure to provide Medicaid coverage for non-experimental, medically-necessary services within a covered Medicaid category is both per se unreasonable and inconsistent with the stated goals of Medicaid.“) (collecting cases); White v. Beal, 555 F.2d 1146, 1151 (3d Cir. 1977) (“[W]hen a state decides to distribute a service as part of its participation in Title XIX, its discretion to determine how the service shall be distributed, while broad, is not unfettered: the service must be distributed in a manner which bears a rational relationship to the underlying federal purpose of providing the service to those in greatest need of it“); Rush, 625 F.2d at 1156 n.12 (“[A] ‘state may not arbitrarily deny or reduce the amount, duration, or scope of a required service . . . solely because of the diagnosis, type of illness, or condition.‘” (quoting
Finally, plaintiffs’ claims under the Availability and Comparability Provisions of the Medicaid Act rise or fall together. The Availability Provision requires states to make covered treatment available in “sufficient . . . amount, duration and scope to reasonably achieve its purpose,” subject to “appropriate limits,” such as “medical necessity” or “utilization control procedures.”
C. Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment prevents a state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.”
When a classification is based on sex, the state action is subject to heightened scrutiny meaning that “the burden rests with the state to demonstrate that its proffered justification is ‘exceedingly persuasive.‘” Whitaker, 858 F.3d at 1050 (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)). More specifically, the state must “show that the ‘classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.‘” Id. (quoting Virginia, 518 U.S. at 524). In addition, “the justification must be genuine” and cannot be hypothesized, created in response to litigation, or based on “overbroad generalizations about sex.” Id. (citing Virginia, 518 U.S. at 533).
While defendants identify two possible government interests -- “containing costs and protecting public health in face of uncertainty” (Opp‘n (dkt. #182) 32) -- they do not meet their burden of demonstrating that either justification was genuine, nor that the Challenged Exclusion was substantially related to achieving those objectives.27 As to protecting public health, for reasons already discussed above, defendants provide no evidence that, before adopting the Challenged Exclusion, DHS or its predecessor: (1) conducted “any systematic study or review of relevant peer-reviewed scientific or medical literature relating to the excluded services” to conclude that the services “were not medically necessary“; or (2) made an informed determination that any of the excluded services were experimental, unsafe, or ineffective in treating gender dysphoria. (Stip. PFOF (dkt. #154) ¶¶ 70-73.) To the contrary, DHS concedes that neither is true. Even after adoption of the Challenged Exclusion, DHS neither “undertook any study or review of the safety or efficacy of medical or surgical treatments for gender dysphoria,”
As also set forth in detail above, the medical consensus is that gender-confirming treatment, including surgery, is accepted, safe, and effective in the treatment of gender dysphoria, meaning that the denial of Medicaid benefits for needed medical treatment completely fails to protect the public health. (See Mayer Rpt. (dkt. #55-1) 8-9 (recognizing that gender dysphoria “is a serious medical condition that deserves to be treated” so that “reducing or eliminating the very real distress associated with the condition is the ‘[o]ptimality consideration[]‘“).) In fact, this consensus is so strong that it includes DHS‘s own former BBM medical director, Dr. Julie Sager, who acknowledged that removing the Challenged Exclusion would be consistent with accepted medical practice and standards of care, as well as BBM‘s chief medical officer, Dr. Lora Wiggins, who considers surgical treatment for gender dysphoria to be medically reasonable. So, too, Wisconsin Medicaid has concluded that gender-confirming surgeries were medically necessary in at least a handful of cases, including the approvals of chest surgeries before 2016.28 Accordingly, there is no evidence from which a reasonable jury could conclude that protecting the public health was a genuine motivation for the Challenged Exclusion.29
Defendants’ other, stated justification, based on cost-savings, fares no better on summary judgment. While documents predating the Challenged Exclusion concluded that it -- along with a larger list of excluded services -- “was expected to result in nominal savings,” those same documents add that Wisconsin Medicaid “has hardly ever paid for any of those [excluded] services or for those purposes.” (Fiscal Estimate (dkt. #21-14) 2-3.) Likewise, since the Challenged Exclusion‘s effective date, the only investigation DHS has made into any actual cost savings from adoption of the Exclusion was performed in connection with defendants’ defense of this lawsuit. (Stip. PFOF (dkt. #154) ¶¶ 74-75.) Moreover, even these analyses reveal such small estimated savings resulting from the Challenged Exclusion that they are both practically and actuarially immaterial. Defendants estimate that removing the Challenged Exclusion and covering gender-confirming surgeries would cost between $300,000 and $1.2 million annually, which actuarially speaking amounts to one hundredth to three hundredth of one percent
ORDER
IT IS ORDERED that:
- Plaintiffs’ motion for summary judgment (dkt. #151) is GRANTED and defendants are PERMANENTLY ENJOINED from enforcing the Challenged Exclusion (
Wis. Admin. Code §§ DHS 107.03(23)-(24) ,107.10(4)(p) ) against the named plaintiffs and other members of the class. - The parties may have fourteen (14) days to meet and confer on the scope of this and any other permanent relief, at which point they are to submit a joint, proposed injunction or competing proposals.
- Plaintiffs’ motion to strike (dkt. #192) is DENIED.
- The telephonic scheduling conference before Magistrate Judge Crocker remains scheduled for August 27, 2019, at 2:30 p.m.
Entered this 16th day of August, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge