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Photo by Dave Decker
Florida trans-rights advocates in West Palm Beach on Dec. 3, 2022.
A federal appeals court on Friday rejected a request to shield the secretary of the Florida Agency for Health Care Administration from testifying in a lawsuit challenging the state’s prohibition on Medicaid coverage of gender-affirming care for transgender people.
Plaintiffs in the lawsuit want to depose Agency for Health Care Administration Secretary Jason Weida, arguing that he has unique information about a rule approved last year that banned Medicaid reimbursements to health-care providers for treatments such as puberty blockers, hormone therapy and surgeries for transgender people.
Lawyers for the state argued that, under what is known as the “apex doctrine,” Weida should not have to testify because he is a high-ranking official.
But U.S. District Judge Robert Hinkle this month denied the state’s request for a protective order to block the deposition. Siding with plaintiffs, Hinkle found that Weida likely has “relevant, indeed significant, information not available from other sources.”
Before his appointment as secretary this year, Weida was the agency’s assistant deputy secretary for Medicaid policy and Medicaid quality at a time when it developed the rule blocking payments to health-care providers for the targeted treatments.
The state, following Hinkle’s ruling, sought what is known as a writ of mandamus from the 11th U.S. Circuit Court of Appeals to try to shield Weida from testifying.
But a two-judge panel of the Atlanta-based appellate court on Friday ruled the state “does not have a clear and indisputable right” to a writ of mandamus.
“The district court did not abuse its discretion in determining that Weida is subject to deposition because he possesses unique or superior knowledge of discoverable information regarding the process that resulted in the agency adopting a rule that excludes the treatments,” Judges Andrew Brasher and Britt C. Grant, who were both appointed by former President Donald Trump, wrote in Friday’s ruling.
The agency adopted the Medicaid rule last summer, basing its decision, at least in part, on a report concluding that the targeted treatments are “not consistent with generally accepted professional medical standards and are experimental and investigational.”
A group of plaintiffs filed a federal lawsuit in September challenging the rule, arguing the gender-affirming treatments are “medically necessary” and “evidence-based.”
The plaintiffs’ legal team and the agency’s lawyers have wrangled over the release of documents and other information related to the rule.
While some records have been protected from public scrutiny, others show that Weida was an architect of the report and was instrumental in the creation of the rule.
The records show that “Weida personally selected the consultants used” in the process to justify the rule, “managed the drafting of the consultants’ reports to be used” in the process, and “ultimately oversaw the issuance” of the prohibition, lawyers for the plaintiffs wrote Monday in a response to the state’s request for a writ of mandamus.
“And because Weida conducted much of these undertakings only orally, he is the only witness who can testify about them comprehensively,” they argued.
The state for years had authorized Medicaid reimbursements for gender-affirming care before adopting the rule prohibiting such payments.
The lawsuit alleges that the state’s prohibition on Medicaid coverage for gender dysphoria is unconstitutional and violates federal laws prohibiting discrimination based on sex. Costs of surgeries, services and medications can run to thousands of dollars per month.
The plaintiffs, who include adults, children and the children’s parents, are being represented by groups including Lambda Legal Defense and Education Fund, Inc., Southern Legal Counsel, Inc., the Florida Health Justice Project and the National Health Law Program and the Pillsbury Winthrop Shaw Pittman, LLP firm.
DeSantis’ administration has authorized more than $1.3 million for legal and expert-witness fees in the dispute, according to a review of state records by The News Service of Florida.
The Medicaid prohibition is among a number of actions DeSantis, widely seen as a top contender for the Republican presidential nomination in 2024, has taken targeting transgender people.
At the request of the governor’s administration, state medical boards banned doctors from using puberty blockers, hormone therapy and surgeries to treat minors for gender dysphoria. The federal government defines gender dysphoria clinically as “significant distress that a person may feel when sex or gender assigned at birth is not the same as their identity.”
The Florida Legislature is considering a series of controversial measures related to transgender people, including a bill that the House approved this week to enshrine into law the medical boards’ rules about gender-affirming care for children.