In Article 78 Proceeding Judge Finds in Favor of Legal Aid Juvenile Rights Practice Client, Ordering ACS to Pay for Transgender Surgery
MONDAY, MARCH 31, 2014

New York County Supreme Court Judge Peter H. Moulton agreed with The Legal Aid Society's Juvenile Rights Practice in an Article 78 proceeding regarding a transgendered client and ordered the City's Administration for Children to pay for all the client's gender affirming surgeries. In October 2013, ACS determined that JRP's client was not eligible for medical procedures which would address her diagnosis of gender dysphoria and allow her to conform her appearance to her female gender identity. While ACS did not contest her gender dysphoria, despite much evidence supporting the medical procedures including a positive recommendation by ACS' own Health Review Committee, ACS denied the procedures based partly on the report of one independent doctor who, without meeting with the client, stated that the client would not comply with the post-operative procedures.

Judge Moulton, in granting JRP's application requesting a determination that ACS' decision was arbitrary and capricious (the Article 78 standard), noted that ACS did not follow it's own procedures for Non-Medicaid Reimbursement and, in fact, the failure to follow these procedures along with the ACS Deputy Commissioner's complete discretion to approve or disapprove gender affirming surgeries and procedures, was a fundamental flaw. In addition, the court found that ACS' failure to consider in its decision-making process the client's complete inability to pay for these surgeries and procedures once she ages out of foster care in less than a year rendered the decision arbitrary and capricious.

Tamara Steckler, Attorney-in-Charge of the Juvenile Rights Practice, praised the decision, saying the judge showed a "complete understanding of the issues" that clients such as D.F. had to confront. She noted medical requests like D.F.'s had arisen before and had been granted "occasionally." Steckler told the Law Journal that "this area is not well fleshed out" and the city had a "unique opportunity" to review the process of agreeing to the sort of procedures at issue "and better support our clients aging out of foster care."

This decision also rejected ACS' common assertion that lack of compliance with some of ACS' rules necessarily means that a client will not comply with necessary post-operative care. The Legal Aid trial office team included Courtney Camp and Vanessa Paugh, working alongside Judy Stern and Judy Waksberg from our Appeals Unit.

The New York Law Journal
ACS Told to Pay for Surgeries for Transgender 20-Year-Old
By Andrew Keshner
March 31, 2014

A judge has ordered New York City's Administration for Children's Services to pay for gender-affirming surgeries for a transgender 20-year-old in foster care, overruling the agency's refusal.

Manhattan Supreme Court Justice Peter Moulton said the agency failed to follow its own internal procedures when considering D.F.'s application for procedures costing about $46,000 to conform her appearance with female gender identity.

Moreover, the agency lacked basis in the record to reject her application by arguing her "chronic absences" from group homes meant she would not comply with post-operative requirements.

"The mental health professionals who supported petitioner's applications all knew of her chronic absences, yet all stated that she needed the surgeries and procedures in question. None of them questioned whether petitioner would follow through with post-operative care," he wrote in D.F. v. Carrion, 400037/14, granting D.F's Article 78 petition.

Noting D.F.'s "almost certain inability" to pay for the procedures once aging out of foster care, Moulton later added, "Payment by ACS for necessary medical procedures may be a transgender youth's only chance to achieve congruence between her gender identity and her physical appearance."

Prior to D.F.'s application, ACS had granted four other requests for procedures like those D.F. was seeking.

"We will abide by the court's ruling and provide the requested services," said a New York City Law Department spokesperson.

D.F. was born male, but has identified as female for a number of years and been diagnosed with gender dysphoria.

The condition refers to "distress arising from incongruence between her experienced or expressed gender and the gender she was assigned at birth," Moulton said. ACS has not disputed the diagnosis.

D.F. and her sister were put in foster care after ACS filed a 2009 neglect petition against their parents, who criticized D.F.'s sexual orientation and gender expression.

The father drank and committed acts of domestic violence against D.F and her mother. Meanwhile, case records said their mother suggested more than once that D.F. kill herself.

D.F. was placed in a group home for lesbian, gay, bisexual, transgender and questioning youths and began to make her appearance and legal status fit her female identity.

With the help of group home staffers and physicians at an outreach clinic, she later began hormone therapy and regularly used the clinic's services.

Still, D.F. was often absent from her group home, racking up more than 300 absences over four years and missing many appointments with the home's psychologist. D.F. also has been "chronically absent" from her new group home and stays mostly at a friend's place. The case's record does not offer explanations for D.F.'s absences.

Under Social Services Law §398(6)(c), ACS must provide "necessary medical or surgical care" for all children in foster care.

A 2008 Appellate Division, First Department, ruling said that obligation still applied even if Medicaid does not offer reimbursement. New York State Medicaid does not cover costs connected to gender reassignment or costs meant to "promote such treatment."

Under ACS guidelines for the payment of medically necessary treatments not covered by Medicaid, the foster care agency first determines if there are other sources for payment and then submits paperwork from medical professionals about the need for the treatment or procedure.

The application goes to the ACS Health Review Committee, which makes recommendations to the deputy ACS commissioner, who has final say on the application.

ACS guidelines said applications for matters connected to a transgender person's treatment shall be made in accordance with standards set by the World Professional Association for Transgender Health.

In May 2012, D.F.'s group home submitted a request ACS pay for D.F.'s breast augmentation, tracheal shaving and laser hair removal.

Included in the application were letters from psychiatrists at the group home and clinic who said the procedures were necessary.

The committee approved D.F.'s application even while noting her repeated absences.

But Deputy Commissioner Benita Miller denied the application, pointing to D.F.'s absences and her failure to receive "ongoing psychiatric care."

D.F. tried again about a year later with an application for a wider range of procedures, including full sexual reassignment. Her psychiatrists submitted new letters in support.

ACS' committee did not review the second application.

Instead, ACS consulted Dr. John Steever, an assistant professor of pediatrics and adolescent medicine at the Icahn School of Medicine at Mount Sinai, who has a longtime focus on health matters for youths like D.F.

In court papers, the city said the committee did not review the second application because it had been sent soon after the first denial and basically repeated the first application, but with requests for two more procedures.

In any event, Steever reviewed D.F.'s records but did not meet with her. He said it was best to hold off on the procedures "at this time" until she could heed follow up care directions, noting her "poor adherence to ACS recommendations and programs."

Failure to follow post-operative protocols could make for consequences like infection, unnecessary scarring, urinary problems and sexual sensation problems, said Steever. Moreover, the procedures were not needed to address emergencies, he said.

Miller relied on Steever to deny D.F.'s second application and D.F. sued to void the second bid's denial.

In his ruling, Moulton said a denial based on an individual's possible non-adherence with post-operative care had "facial validity."

But medical professionals who knew of D.F.'s absences still said surgery was needed and did not question her willingness to stick with post-operative care.

The judge said D.F.'s medical records revealed her "commitment and maturity in dealing with her health care, both trans-related and non-trans-related." Among other things, she consistently followed hormone therapy directions and tested negative for sexually-transmitted diseases and HIV, he said.

Moulton also faulted ACS for not following its internal procedures when weighing the second application, such as sending it to Steever versus the committee.

Furthermore, Moulton said ACS' procedures had a "fundamental flaw" by giving the deputy commissioner "complete discretion" to authorize gender-affirming surgeries and procedures.

"This procedure allows ACS to deny payment for medically necessary care, in derogation of its duty under Social Services Law §398(6)(c)," Moulton wrote.

He concluded by saying ACS' denial for the time being "completely ignore[d]" D.F.'s slim chances to pay for the procedures herself.

She still does not have a GED, is estranged from family and "faces a transphobic society" where most jurisdictions lack anti-discrimination laws clearly shielding transgender individuals, he said.

"The inability to pay for gender affirming surgeries and procedures after foster care is not a factor that should trump clinical factors, but it certainly should not be absent from ACS' decision making," said Moulton.

Assistant Corporation Counsel John Buhta represented ACS. D.F. was represented by Courtney Camp and Judith Stern of the Legal Aid Society.

Tamara Steckler, attorney in charge for the Legal Aid Society's juvenile rights practice, praised the decision, saying the judge showed a "complete understanding of the issues" that clients such as D.F. had to confront.

She noted medical requests like D.F.'s had arisen before and had been granted "occasionally." Still, Steckler added, "this area is not well fleshed out" and the city had a "unique opportunity" to review the process of agreeing to the sort of procedures at issue "and better support our clients aging out of foster care.