Plaintiffs’ attorneys on Oct. 4 asked U.S. District Judge Robert Hinkle to enforce a June decision that invalidated a state law and a rule “to the extent they categorically ban Medicaid payment for puberty blockers and cross-sex hormones for the treatment of gender dysphoria.”
The attorneys contended the state has continued to enforce the rule in “complete defiance of the judgment.”
But in a 10-page response Wednesday, lawyers for the Florida Agency for Health Care Administration argued the state is not enforcing the rule as a “categorical ban” on coverage for the treatments. That is because Medicaid patients could seek variances or waivers of the rule through an administrative process.
“Given the continued ability of Medicaid-eligible gender dysphoria patients to petition for a variance or waiver on a case-by-case basis, the (state) defendants are not enforcing (the rule) as a categorical ban on Medicaid coverage for hormonal treatments for gender dysphoria,” the response said. “It follows that there is no need for an order to enforce the court’s final judgment.”
But in the Oct. 4 filing, attorneys for the plaintiffs called such arguments a “red herring” and said, for example, that the Agency for Health Care Administration has told Medicaid managed-care organizations to deny coverage for such treatments. Most Medicaid beneficiaries are enrolled in managed-care plans.
“In short, the denials of coverage and instructions to MCOs (managed-care organizations) are categorical, and defendants have announced their intent to continue to enforce this categorical ban on Medicaid coverage of puberty blockers and hormones as treatment for gender dysphoria despite this court having deemed it unconstitutional and unlawful,” the plaintiff’s filing said.
The lawsuit was filed last year on behalf of two transgender adults and the parents of two transgender minors after the Agency for Health Care Administration adopted the rule. The lawsuit was updated this spring to also include a new state law aimed at preventing Medicaid coverage for the treatments.
Hinkle in June ruled that the law and the rule violated constitutional equal-protection rights, a federal Medicaid law and a federal Affordable Care Act prohibition on sex discrimination.
Part of the decision ordered the Agency for Health Care Administration to provide Medicaid coverage for the four plaintiffs in the case. But part of it also more broadly invalidated the law and the rule “to the extent they categorically ban Medicaid payment.”
The state has appealed Hinkle’s decision to the 11th U.S. Circuit Court of Appeals and has not tried to move forward with the law that DeSantis and the Republican-led Legislature approved this spring. But it has continued to use the rule approved last year, while pointing to the possibility of patients receiving variances or waivers.
In the filing Wednesday, the state’s lawyers disputed the plaintiffs’ allegation that the argument about variances or waivers is a “red herring.”
“Based on the logic of this court’s final judgment, a gender dysphoria patient may be able to obtain a variance or waiver of (the rule) if he or she demonstrates that a multidisciplinary team of providers of the type referenced by this court has determined that hormonal treatment is medically necessary and that refusal of Medicaid coverage for such treatment would create substantial hardship under the particular circumstances at hand,” the state’s lawyers wrote.
But in the Oct. 4 court document, the plaintiffs’ attorneys urged Hinkle to enforce the judgment by instructing the state that it cannot use the rule to bar Medicaid coverage for the treatments.
“The rule, on its face, categorically excludes from Medicaid coverage all gender-affirming medical treatment, including puberty-delaying medications and hormones,” the plaintiffs’ attorneys wrote. “And, on its face, the rule has no exceptions.”
DeSantis and many other Republican leaders across the country have made a priority in recent years of trying to restrict treatments for people with 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.”
This article appears in Oct 19-25, 2023.