Transgender Youth Seeking Medicaid Coverage Clear Last Legal Obstacle

New York’s low income transgender youth must receive the medically necessary care they deserve without having to wait for the state’s regulatory process to run its course, a federal judge decided in a significant victory for the transgender community’s access to health care.

Southern District Judge Jed Rakoff removed the final legal hurdle for New York transgender youth seeking Medicaid coverage for hormone therapy and other necessary procedures to treat gender dysphasia. His ruling on Monday caps more than two years of dedicated advocacy by The Legal Aid Society, Willkie Farr & Gallagher LLP and the Sylvia Rivera Law Project.

The class action lawsuit was filed in 2014 on behalf of Medicaid-eligible transgender individuals diagnosed with gender dysphoria whose expenses were not reimbursable under the current regulation; the lack of coverage from discriminatory 1998 Medicaid regulations was unconstitutional, plaintiffs argued.

Judge Rakoff previously ruled New York State wrongly denied medically necessary care that the state erroneously deemed "cosmetic procedures." Yet he did not decide at the time if the coverage exclusion for individuals under age 18 violated law, saying there were still disputed facts.

In direct reaction to the lawsuit, the New York State Department of Health earlier this month proposed rules explicitly authorizing the state’s Medicaid Program to cover hormone therapy and necessary procedures to treat gender dysphoria for individuals younger than age 18 – a concession by the state admitting the procedures were needed.

Plaintiffs asked Judge Rakoff to reconsider his earlier decision about disputed facts on the age exclusion issue due to the new evidence of the state’s about face on the issue.

Judge Rakoff agreed there were no more disputed factual questions and granted the plaintiff motion.

Attorneys from The Legal Aid Society include Judith Goldiner, Kimberly Forte, Belkys Garcia and Sumani Lanka; Milk Kinkead from the Sylvia Rivera Law Project; and Mary Eaton and Wes Powell both Partners at Willkie, Farr & Gallagher, LLP lead the Willkie team.

The New York Times
New York Moves to Allow Medicaid to Cover Hormone Therapy for Transgender Youth
By Jesse McKinley
Oct. 5, 2016

ALBANY — The New York State Health Department has signaled it intends to allow transgender youth to receive Medicaid coverage for hormones that forestall puberty, wiping away prohibitions that have been criticized by lesbian, gay, bisexual and transgender groups.

The move, announced on Wednesday in a proposed rule in the State Register, would allow minors who are being treated for gender dysphoria to receive Medicaid payment for pubertal suppressants and cross-sex hormone therapy, which mimic the biological chemistry of the opposite gender. Previously, the state had covered such hormone treatments for adults, a change that took effect last year.

In the proposed rule, the department stated that its concerns about the safety and efficacy were supplanted after it “had the opportunity to talk to a number of practitioners who treat minors” with gender dysphoria, who uniformly agreed that hormone therapies were medically justifiable for young people who feel that their birth sex is not their true gender.

“The proposed changes therefore would make Medicaid coverage of transgender care and services available, regardless of an individual’s age, when such care and services are medically necessary to treat the individual’s gender dysphoria,” the rule reads.

The change will not take effect immediately; the rule has a 45-day comment period, and the state can formally adopt it after that time.

New York is not the only state to allow Medicaid — a joint federal and state program — to cover such hormone treatments, said Sasha Buchert, a staff lawyer with Transgender Law Center in California, which has long had such coverage.

But Ms. Buchert said New York’s move was a “significant step forward” in providing care for transgender people of all ages.

“These decisions,” she said, “should be made by physicians.”

The decision in New York came during a legal battle — and after victories — for advocates for transgender rights, both in New York and in other parts of the nation.

“Puberty is traumatic, or can be, for all people, but it’s incredibly traumatic for transgender people,” said Belkys Garcia, a staff lawyer with the Legal Aid Society, one of several groups that filed a federal suit against New York’s restrictions on payments for transgender treatments. She added that puberty suppressants, in particular, allow some young people grappling with gender dysphoria “time to figure themselves out,” even if they do not eventually transition to the opposite sex.

New York was among a handful of states that had enacted prohibitions on Medicaid payments for such treatments, a policy that dated back to the administration of Gov. George E. Pataki, a three-term Republican who left office in 2006. Since then, there were several failed legal attempts to overturn those rules.

But advocates have been emboldened in recent years by both a broader cultural acceptance of transgender people as well as actions by Gov. Andrew M. Cuomo, a Democrat, including in late 2014 when he instructed the Department of Financial Services to guarantee insurance coverage for gender dysphoria. Last fall, the governor also announced anti-discrimination measures for transgender people in housing and other areas, using his executive power to overcome a legislative logjam in the Republican-led State Senate.

In March 2015, the Health Department, already facing legal action, adopted rules that allowed for some coverage, including gender reassignment surgery for adults displaying “a persistent and well-documented case of gender dysphoria,” but stopped short of covering minors as well as certain treatments the state considered cosmetic, rather than medically necessary.

In July, however, a federal judge in Manhattan, Jed S. Rakoff, of United States District Court, ruled that such restrictions on the so-called cosmetic procedures were not legally defensible, but wanted a trial for the issue of whether treatment for youth was medically necessary. More legal arguments are planned for this month, but though the proposed rule on youth coverage could satisfy the court.

The state’s action on Wednesday also would appear aimed at addressing the judge’s concerns, by clarifying the state’s intent to allow Medicaid coverage for a wide variety of treatments including mastectomy , hysterectomy and breast augmentations, as well as electrolysis — which is often expensive — in certain cases.

The legal team pushing for the changes — including Legal Aid, the Sylvia Rivera Law Project, and Willkie Farr & Gallagher — says it will continue to push the state for fast action on the proposed rule. “Without a judgment from the court, there’s nothing to say the state can’t make another change,” Ms. Garcia said.

Health Department officials characterized the change as another sign of Mr. Cuomo’s “commitment to equality in all areas.”

“These proposed regulations build upon existing science to ensure that youths who have been diagnosed with gender dysphoria receive medically necessary care,” said James Plastiras, a spokesman for the department. “And render moot any claim that current standards don’t provide that care.”

Many surgical procedures would not necessarily be appropriate for minors — “It’s rare that people are getting surgery under 18,” Ms. Garcia pointed out — though they could be covered in some cases under the department’s proposed rule.

But the major benefit for transgender youth would primarily be the hormone treatments, according to medical professionals.

Dr. Carolyn Wolf-Gould, a family practitioner at the Gender Wellness Center in Oneonta, N.Y., part of Bassett Healthcare Network, said that blocking the physical characteristics of puberty could offset the need for difficult surgeries, particularly for “youth that are assigned male at birth.”

“Once male puberty has occurred it’s very hard to reverse those changes,” Dr. Wolf-Gould said, noting the genital and facial changes and hair growth that occur usually during that period, along with physical bulking.

She added that for birth-females intending to transition to male, mastectomies can cause “painful and unsightly scars.”

There is also, however, a major emotional benefit to allowing “a youth to go through puberty in their affirmed gender,” she said.

“It provides tremendous psychological relief,” she said, adding that delaying puberty can provide “a sense that they suddenly have some control going on with their body.”