No Medicaid for Sex Changes in New York

Written by Arthur S. Leonard Thursday, 30 July 2009 07:07

The NY State Health Department has a regulation barring the use of state medicaid funds to cover the cost of gender reassignment and related treatments.

There have been several unsuccessful challenges to this over the years. By contrast, I can recall a decision from decades ago ruling that another state's medicaid program was obligated to cover gender reassignments. But that's neither here nor there for New York transsexuals who are seeking these procedures.

The lastest disappointment was rendered by U.S. District Judge Charles Siragusa (W.D.N.Y.), in Ravenwood v. Daines, issued on July 17. Judge Siragusa did a cut-and-paste opinion, quoting wholesale from a ruling last year by District Judge P. Kevin Castel (S.D.N.Y.), who rejected a similar challenge to the NY Medicaid Regulation, the infamous 18 N.Y.C.R.R. section 505.2(1). This provides that "payment is not available for the care, services, drugs for the purpose of gender reassignment (also known as transsexual surgery) or any care, services, drugs or supplies intended to promote such treatment."

In this case, the plaintiff, born in 1962, was diagnosed as having gender identity disorder (GID) at the unusually early age of 5 years old, and has lived as female since 1967. She has been on Medicaid since 1989 as her source of health care, and SSI and food stamps are her only source of income. (The court opinion does not relate why she is totally reliant on social welfare to fund her existence.) Since 1998, the NY Medicaid program has played for her hormonal treatment, voice therapy, water pills, medications related to gender reassignment, and mental health care, but they drew the line at paying for surgery and eletrolysis, even though her doctor stated in writing that "sexual reassignment surgery will greatly enhance her overall mental health and well-being."

The lawsuit, in which Ravenwood is represented pro bono by Rochester, NY, attorney Alecia Elston, takes a two-prong approach. One prong is to argue that the state Medicaid regulation violates federal regulations governing the program. The other is to argue that denial of the benefits violates the 14th Amendment's guarantee of equal protection of the laws.

On the former claim, Judge Siragusa basically reproduced, in big block indent quotations, Judge Castel's analysis. Actually, this seems fair since Siragusa states that the plaintiff's briefs seem to be taken from the briefs filed with Judge Castel, and the arguments are the same. Ravenwood tried to distinguish her case by pointing out that the Medicaid program has been paying for her gender identity related treatments of various kinds for many years now, and then just arbitrarily - in her view - drew a line and said "no further." By contrast, the plaintiff in Casillas had received hormone therapy at state expense, but none of the other items that Ravenwood has received. Judge Siragusa suggested that this made no difference to the legal analysis.

According to Castel's opinion, as quoted by Siragusa, in order to bring a 42 USC sec. 1983 claim against the state Medicaid program, Ravenwood would have to show that the benefit she is seeking is clearly covered under the federal regulations. The problem is that the federal regulations are rather broadly and a bit ambiguously written. They have their own internal non-discrimination requirements, which Castel construed as requiring that there be no discrimination among needy recipients when it comes to receiving treatments for particular diagnoses, but that discrimination among diagnoses can be made.

Applying this analysis to Ravenwood's claim, it seems that each of the distinct surgical and medical interventions she is seeking might be available to treat other diagnosed conditions, but not to treat GRID. She argues that this constitutes discrimination prohibited by the federal Medicaid regs, but Castel (and Siragusa) hold that it does not, that Medicaid's non-discrimination requirement says that two people with the same diagnosis are entitled to the same treatment, not that two people with different diagnoses are equally entitled to the same procedure that might be used to address either of the diagnoses. Thus, a Medicaid recipient with breast cancer will be covered for a mastectomy, but a transsexual seeking a mastectomy as part of gender reassignment can be denied coverage for the procedure.

Only where Medicaid clearly establishes an entitlement for a particular benefit would the state be in violation by denying the benefit, and Medicaid does not specifically authorize or require coverage for gender reassignment, point out these NY judges, noting in particular that federal Medicaid regulations do not require that the state program cover all medically necessary procedures, and that the federal regulations appear to specifically allow states to ration care by deciding which procedures they will cover.

Turning to the constitutional claim, Judge Siragusa says that Ravenwood is not contending that transsexuals make up a "suspect class" or that there is some fundamental right involved here, thus the 14th Amendment claim is to be decided using the rationality test. Siragusa finds that the explanation provided by the Department of Health when they adopted this regulation suffices for this purpose. When the regulation was proposed and put out for public comment, among the comments submitted in opposition to covering this procedure were those contending that there could be "serious complications" from such surgeris and particularly medical danger from life-long adminsitration of estrogen in order to maintain a feminine appearance. Quoting from Judge Castel's decision, "This provided a more than sufficient rational basis which was related to legitimate government interests - the health of its citizens and the conservation of limited medical resources."

This seems quite paternalistic to me. It says that a procedure that has been available and used by thousands of transsexuals (male to female) over the past half century since the first recorded sex reassigment cases from the mid-1950s can be excluded from coverage in a regulation adopted in 1998 because the State Health Department received some comments from opponents of the procedure suggesting that there can be "serious complications" and that life-long administration of estrogen is "dangerous." In other words, there are risks involved, as there are in any major surgical procedure and long-term treatment using powerful chemical substances. Presumably transsexuals seeking these procedures are well-advised as to the risks and want to go ahead anyway. (The Harry Benjamin principles for treatment require quite a bit of consultation, counseling, information, and multiple expert medical opinions before anyone is allowed to get these procedures.) But the paternalistic state of New York will step in and say "no" on public health grounds? That's bizarre.

This should be evaluated based on what is really at stake. This is clearly a political decision about what the state will spend its medicaid money for, and it is affected by the view - clearly outmoded - that this is a cosmetic procedure that is not medically necessary. Or by a view that "sex changes" are immoral, or are a luxury that the state should not have to spend money for.

But it seems unlikely that reform will be achieved here through a judicial procedure. It is time for the Department of Health to reconsider its regulation in light of current knowledge and current realities. There is half a century of experience with gender reaassignment surgery, which should be carefully examined to determine whether there is really a weighty public health reason to deprive transsexuals who don't have independent economic means to obtain these procedures from getting them through the Medicaid program.

And, of course, this raises yet another question about the health care reform now being considered in Congress. Will the minimum acceptable insurance coverage that will be made available to all Americans, through whatever mechanism is adopted -- non-profit cooperatives, public plan, expansion of medicaid/medicare, whatever -- include coverage for gender reassignment for that small segment of our population dealing with GID whose health-care providers believe that their condition will be relieved by gender reassignment procedures? Or will this, like the politically-charged issue of abortion services, fall victim to moralistic politics?

Read the original article in Leonard Link