New York State Supreme Court Justice Peter H. Moulton has ordered New York City’s Administration for Children’s Services (ACS) to pay for gender reassignment procedures, including surgery, for a 20-year-old transgender girl who is still in the foster care system. Moulton’s March 21 order was reported in the New York Law Journal on March 31. A deputy commissioner had denied the application for treatment for these procedures, which are not covered under New York State’s Medicaid program and thus would have to come out of the agency’s budget, despite a recommendation to approve them from the health care providers who have dealt with D.F., as the child is identified in court papers.
Justice Moulton’s opinion relates that D.F., although identified as male at birth, had identified as female for many years, and was diagnosed with gender dysphoria, a diagnosis that ACS does not dispute. D.F. and her sister entered foster care after ACS filed a petition of neglect against her parents in 2009. The petition specified that D.F.’s parents had criticized her over her sexual orientation and gender expression, and that her father abused alcohol and committed acts of domestic violence against D.F. and her mother. The Family Court placed D.F. with Green Chimneys Gramercy Residence, and when that facility closed in July 2013, she was moved to a residence for LGBTQ youth run by SCO Family of Services. However, as she grew older she absented herself from these facilities and lived for extended periods with various friends, including in a house in Queens that D.F. claims is being considered for certification as a foster home.
While in the custody of ACS, D.F. has “regularly availed herself of the health services at Callen-Lorde,” an LGBT community non-profit health care agency, as well as services provided through Green Chimneys. The various doctors at these facilities who have treated her agreed that she needed gender transition treatments, including hormones, which she began taking a few years ago, and now surgery. Based on their recommendations and her strong desire for these treatments, D.F. submitted an application.
ACS’s procedure with dealing for requests for treatments not covered under Medicaid requires the foster agency to first determine whether there are any other sources of funding, then to submit various forms and statements to ACS from the medical professionals concerning the need for the treatment. Applications are then submitted to a Health Review Committee, which makes a recommendation to the Deputy Commissioner, who is delegated by the Commissioner with the responsibility for being the “final” decisionmaker. The Review Committee has authority to consult with “specialists from the fields in which a particular type of treatment of care is being requested.” The agency’s policy on transgender treatments specifies that decisions are to be made in accord with the standards of care that have been established by the World Professional Association for Transgender Health, usually referred to as the Harry Benjamin standards.
D.F.’s doctors concluded that she met the standards for surgery, and supported her application, as did the Health Review Committee after Green Chimneys submitted the formal application. However, Deputy Commissioner Benita Miller rejected the Committee’s recommendation on July 11, 2013, basing this on D.F.’s frequent absences from Green Chimneys and having frequently missed health appointments there. When D.F. tried to appeal this ruling, a City hearing officer held that under the policies of ACS the Deputy Commissioner’s decision was final. Miller had also commented that D.F. had requested other surgical procedures since submitting her application but failed to include them in the formal application required by the policy. D.F. then got together a second, more inclusive application, which she submitted on July 18, 2013. This application relied on the earlier statements by her doctors, supplemented with new statements from two of them, specifically stating that D.F.’s hormone treatment was “insufficient to her ultimate goals” and that the procedures she was requesting “would serve a therapeutic purpose and improve her well-being.” The doctors found that D.F. understood the risks of gender surgery and was able to provide informed consent. The estimated cost of the procedures was about $46,000.
Departing from its own rules, ACS did not submit this second application to the Review Commission. Instead, ACS consulted an “independent specialist,” Dr. John Steever, an Assistant Professor of Pediatrics and Adolescent Medicine at Mount Sinai Medical Center, who has focused on health issues facing LGBTQ youth. Steever declined to meet with D.F. and decided, based on the paper record, that D.F.’s “poor adherence to AACS recommendations and program” suggested she would not be compliant with post-operative procedures, which could result in “infections, unnecessary scarring, urinary problems, and sexual sensation problems.” He did not dispute the gender dysphoria diagnosis, but stated that there was no emergency that required immediate surgery, and the procedures could be deferred until D.F. was able to comply with the necessary follow-up care. Justice Moulton commented, “He does not address how a transgender young adult, aging out of foster care with no family support and few apparent prospects for employment, might pay for these procedures.”
Although Justice Moulton returns to this issue briefly at the end of his opinion, and perhaps is too polite to impute improper motives to public officials, the tenor of his opinion suggests a suspicion that ACS was trying to get out of paying for D.F.’s surgeries by delaying until D.F. aged out of the program, which she will shortly do when she turns 21. Certainly, Judge Moulton found little reason to credit Steever’s recommendation, and concluded that Deputy Commissioner Miller’s denial of D.F.’s second application, on October 15, 2013, which relied explicitly on Dr. Steever’s recommendation, was arbitrary and capricious and thus a violation of D.F.’s rights.
While Moulton found that the need for follow-up care after the surgical procedures D.F. was requesting was not disputed, he found the decision to deny the application to be “arbitrary and capricious for several reasons.” First, he found no basis in the record for the conclusion that D.F.’s absences from her group homes and occasionally missing medical appointments “are indicators that she will not participate in necessary post-operative care,” and he pointed out that the doctors who had treated her and supported her application were certainly aware of the need for such care but nonetheless endorsed her application. The record also showed that he had been consistent in following her hormone treatment protocols, had “repeatedly and consistently tested negative for STDs and HIV,” and had no record of drug or alcohol abuse.
Additionally, Moulton criticized the failure of the agency to follow its own procedures. Instead of referring the application to the Review Committee, they referred it to a pediatrician, not a mental health professional, for comment, even though the official standards that ACS has adopted required that a “qualified mental health professional” be the one to assess a person’s request for gender transition surgery. The judge also pointed out that “it was also a deviation from the WPATH standards of care for ACS to follow the recommendation of a physician who had not met with petitioner, but instead based his recommendations entirely on reviewing a paper record. “An agency’s failure to follow its own procedures or rules in rendering a decision is arbitrary and capricious,” he wrote.
He further criticized the ACS policy of giving complete discretion to the Deputy Commissioner to deny treatment even though the Review Committee had recommended it, subject to now sort of appeal. ACS had adopted specific criteria for determining whether a transgender individual qualified for surgical gender transition, all of which were met in this case, yet ACS authorized the Deputy Commissioner to deny treatment for reasons not mentioned in those official criteria. “The adoption of a procedure allowing for unfettered discretion in agency decision making is arbitrary and capricious,” wrote Moulton.
But, perhaps most importantly, Moulton came back to the point that apparently caused most concern. “ACS’ denial of the requested surgeries and procedures ‘at this time’ thus completely ignores another factor: petition’s almost certain inability to pay for these surgeries and procedures. Once she ages out of foster care, petitioner’s chances of raising the money necessary to pay for these procedures appear to be nil.” New York’s Medicaid program won’t pay for them. D.F. has not yet completed the requirements for her G.E.D. (general high school graduation certificate), and her employment prospects are uncertain. Until she can afford to purchase health insurance that would cover these procedures, her ability to obtain them would be put “on hold”. Getting the surgery while in foster care is, in effect, her last chance to get these treatments for some indeterminate time to come. “The inability to pay for gender affirming surgeries and procedures after foster care is not a factor that should trump clinical factors,” he wrote, “but it certainly should not be absent from ACS’ decision making. Payment by ACS for necessary medical procedures may be a transgender youth’s only chance to achieve congruence between her gender identity and her physical appearance. Accordingly, ACS’ omission of this factor from its NMR Policy and Guidance is arbitrary and capricious.”
So concluding, Justice Moulton ordered that ACS “shall take all steps necessary to pay for the procedures specified in petitioner’s application dated July 18, 2013.
D.F. was represented by Courtney Camp and Judith Stern, attorneys with the Legal Aid Society. Tamara Steckler, the attorney in charge for Legal Aid’s juvenile rights practice, told the Law Journal that requests for such surgery had occasionally been granted by ACS in the past, but that “this area is not well fleshed out” and that the city should take this opportunity to review its procedures and “better support our clients aging out of foster care.” In addition, the state should reconsider its Medicaid policies to recognize that gender transition procedures can be medically necessary treatments, as federal tax authorities have recently recognized pursuant to a U.S. Tax Court ruling that related expenses incurred by a transgender person for such procedures are tax deductible medical expenses. If Medicaid covered these procedures, there would be no need for ACS to have a convoluted defective internal procedure for deciding whether to pay for them.