Although a Medicaid transgender procedure coverage ban is on hold, the state took action to enforce it last week while it’s pending on appeal.
Five Medicaid health care insurers allegedly broke the state's rules against covering transgender procedures with taxpayer funds between Dec. 1, 2022, and Feb. 28.
In response, the Florida Agency for Health Care Administration delivered cease and desist letters and sanctioned them for allegedly funding the medical practices carried out by health care providers, according to media reports.
“The state may have violated federal law because it cannot impose requirements that go against Medicaid laws or Medicaid regulations,” said Bob Jarvis, professor of constitutional law at the Nova Southeastern University Shepard Broad College of Law. “Federal law always trumps state law. Federal officials always trump state officials, and therefore it would be illegal.”
The five insurers are Simply, Sunshine, Children’s Medical Services, Molina, and Humana.
Florida Administrative Code 59G-1.050(7) began prohibiting Medicaid coverage of treatment for gender dysphoria in Aug. 2022.
But on Sept. 7 2022, two transgender adults, August Dekker and Brit Rothstein, and two transgender minors who are proceeding under fake names through their parents, filed a lawsuit in the Northern District of Florida alleging that that the rule violates the U.S. Constitution’s Equal Protection Clause by discriminating against people based on sex and gender.
"The purpose of Medicaid is to provide health care coverage to individuals who have low income and cannot otherwise afford the costs of necessary medical care," the complaint states. "By denying coverage for gender-affirming care, Defendants effectively categorically deny access to medically necessary care to thousands of Floridians who lack other means to pay for such care."
U.S. District Judge Robert L. Hinkle issued an injunction against Rule 59G-1.050(7)(a) on June 21, 2023 determining that the plaintiffs have standing to sue.
"The loss of Medicaid payment for the needed treatments is an injury in fact; it is concrete and particularized; and it is actual or imminent, not conjectural or hypothetical," Hinkle wrote in his decision. "The injury is traceable to the challenged rule and statute, either of which, standing alone, would require the plaintiffs to forgo or pay out-of-pocket for the needed treatment, or move out of Florida. The injury will be redressed by a favorable decision."
On June 26, the state appealed the injunction.
Prohibited treatments include puberty blockers, cross-sex hormones, and surgeries however none of the minor plaintiffs sought gender reassingment surgery.
“Whether the providers were following Medicaid guidelines is something that would have to be determined in each instance,” Jarvis told the Florida Record.