Another Medicaid Victory!

Breaking news! Today, a decision was handed down in our federal lawsuit Cruz v. Zucker, providing a major victory to transgender New Yorkers who are Medicaid-eligible. Judge Jed S. Rakoff has ruled that the current Medicaid regulations violate the federal Medicaid Act, which requires state Medicaid programs to provide Medicaid recipients with coverage for medically necessary treatment and prohibits Medicaid plans from selectively denying coverage of treatments on the basis of diagnosis. Judge Rakoff went further, stating that the list of procedures New York State Medicaid had deemed suspicious or cosmetic was unlawful and that New York must provide Medicaid coverage for these procedures.

In the same ruling, Judge Rakoff determined that SRLP and our colleagues at the Legal Aid Society and Willkie Farr & Gallagher LLP should become ready for trial on the issue of what types of treatments are medically necessary to treat gender dysphoria in individuals under the age of 18.

After over 14 years of organizing with wonderful community partners like GLOBE and the Audre Lorde Project, this is a tremendous win! This decision will have sweeping impacts on transgender Medicaid recipients across the State, and may even help to push other state’s Medicaid programs further. SRLP staff and our community members are excited and ready to go to trial to push for the much needed recognition of trans health care rights for people under the age of 18.

Press release:

New York State must remove restrictions on medically necessary healthcare for transgender Medicaid recipients under a decision issued late yesterday by a federal judge in Manhattan.  Under the ruling, New York will be one of very few states where transgender individuals can obtain Medicaid funding for treatments that will bring their physical appearance in line with their gender.  A trial will be held to determine to what extent coverage must be provided for transgender Medicaid recipients under the age of 18.

The decision came in Cruz v. Zucker, 14 Civ. 4456 (JSR), a class action lawsuit filed by The Sylvia Rivera Law Project (“SRLP”), The Legal Aid Society, and Willkie Farr & Gallagher LLP (“Willkie Farr”) on behalf of Medicaid-eligible transgender individuals diagnosed with gender dysphoria in the United States District Court for the Southern District of New York.  In early 2015, the same case prompted the New York State Department of Health to amend a regulation, 18 N.Y.C.R.R. §505.2(l), adopted in 1998 by Governor George Pataki’s administration that had banned Medicaid coverage of all transgender care.  As a result, in March 2015 the state began covering hormone therapy and gender-reassignment surgery for adults.  But the revised regulation still excluded coverage for certain treatments deemed “cosmetic procedures”—such as facial feminization surgery, breast augmentation, and tracheal shaving— which experts in the case testified are medically necessary for some patients to reduce the acute distress and suicide risk associated with gender dysphoria.  “This is an incredible victory for the transgender community.  It is recognition that medical standards and the needs of individual patients should determine coverage, not the state’s designation of certain medical care as simply cosmetic,” said attorney Mik Kinkead of SRLP.

Judge Jed S. Rakoff ruled the regulation violated the federal Medicaid Act, which requires state Medicaid programs to provide Medicaid recipients with coverage for medically necessary treatment falling within certain specified categories to Medicaid recipients, and prohibits Medicaid plans from selectively denying coverage of treatments on the basis of diagnosis. “Most of the procedures that were excluded by the regulation were already being covered by New York’s Medicaid program for other diagnoses, but not for gender dysphoria.  This decision declares such discrimination to be unlawful,” said attorney Kimberly Forte of the Legal Aid Society.  Judge Rakoff ruled that New York must provide Medicaid coverage for the procedures that the state had previously deemed “cosmetic,” and thus not covered.  Some Medicaid recipients have been denied coverage for the procedures in recent months, even after demonstrating they were medically necessary.

“For 16 years, Albany turned a deaf ear to the chorus of medical experts who said these treatments were necessary and safe,” said attorney Mary Eaton, who argued the motion on behalf of Willkie Farr & Gallagher.  “This decision is a strong rebuke to playing politics with the healthcare of our state’s most vulnerable citizens.”

The revised regulation also excluded all treatment for people under age 18, including pubertal suppressants (also known as puberty blockers), which allow transgender adolescents to temporarily delay the physical changes associated with puberty, permitting them additional time to determine whether to seek further medical treatment for their gender dysphoria.  Judge Rakoff concluded that there are disputed issues of material fact regarding what types of treatments are medically necessary to treat gender dysphoria in individuals under the age of 18, necessitating a bench trial to resolve those issues.

The decision represents a dramatic victory for transgender New Yorkers. The attorneys will be happy to further explain the decision and comment on the case.

Contacts for Comment:       

Willkie Farr & Gallagher LLP

• Mary Eaton is a partner at Willkie Farr. She argued the decisive motion in the case before Judge Rakoff and has been involved in the case since its inception.  Eaton has led the firm’s pro bono efforts on a number of high profile cases, and was recently honored by the New York Law Journal and the New York State Bar Association for her pro bono service. She can be reached at 212-728-8626 and meaton@willkie.com.
• Wesley Powell is a partner at Willkie Farr. He is on the board of the Hetrick-Martin Institute in Manhattan, which provides counseling and legal assistance to LGBT youth. He has been involved in the case since 2015.  He can be reached at 212-728-8264 and wpowell@willkie.com.

Legal Aid Society

• Kimberly Forte is the Supervising Attorney of the Legal Aid Society’s LGBT Law and Policy Initiative. The Initiative’s goal is to work within all three of the Legal Aid Society’s practices – Criminal Defense, Juvenile Rights, and Civil – to increase the Legal Aid Society’s cultural humility as it relates to representing low-income LGBT New Yorkers and to increase the Legal Aid Society’s litigation and policy efforts on behalf of these communities.  She can be reached at 212-577-3915 and kforte@legal-aid.org.

Sylvia Rivera Law Project

• Mik Kinkead is a staff attorney at SRLP, a non-profit dedicated exclusively to the legal representation of transgender individuals. He is well-versed in the procedures and treatments covered by the decision, and has been involved in the case since 2015.  Kinkead can be reached at 212-337-8550, ext. 302 and mik@srlp.org.