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Judge restricts Idaho Medicaid gender-affirming care coverage ban for seven suing patients • Idaho Capital Sun [1]

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Date: 2024-07-01  

For seven transgender and nonbinary Idahoans on Medicaid, a federal judge has temporarily blocked a new law that bans public funds for their gender-affirming care.

On Saturday, federal judge Raymond E. Patricco, chief magistrate judge in the District of Idaho, issued a temporary restraining order that began Monday, blocking the new law only for the seven patients, who are plaintiffs in a lawsuit.

“It appears clear that certain Plaintiffs are receiving gender-affirming care, that is currently being covered by Medicaid, but that will end on July 1, 2024 with (House Bill) 668,” Judge Patricco wrote.

The new law took effect Monday, banning Idaho Medicaid and public funds from covering gender-affirming medication and surgeries. It’s not clear if Idaho’s government employee health insurance plan is blocked from covering gender-affirming care under the law.

The bill creating the new law — House Bill 668 — was approved by all but one Idaho Republican state legislators this spring before Gov. Brad Little signed it into law.

Bill sponsors argued the bill ensures that taxpayer dollars are not inappropriately used. Opponents testified that major medical groups say gender-affirming care is medically necessary and safe, and that the bill could lead to a lawsuit against the state for discriminating against transgender Idahoans.

The temporary restraining order expires July 15. In April, the U.S. Supreme Court allowed Idaho’s law banning gender-affirming care for minors to take effect, but blocked it for plaintiffs in a lawsuit challenging the law.

Patricco ordered briefings within the next week from Idaho and the suing patients on the temporary restraining order.

A hearing for a longer preliminary injunction would be set after, according to the judge’s order.

A “temporary restraining order is appropriate to preserve the status quo pending a more complete review of the circulating issues,” Judge Patricco wrote.

Attorneys in the ongoing lawsuit by transgender and nonbinary Idahoans on Medicaid allege Idaho Medicaid has an unwritten policy of denying or delaying gender-affirming care coverage, and seeks to block House Bill 668.

“The Plaintiffs already have had their gender-affirming care stopped so the Order was a relief for them, but it is only temporary and does not prevent others who are not named in the case from being harmed while the case continues and the Court makes a ruling,” Idaho Legal Aid Services Associate Director Howard Belodoff, who represents the suing patients, told the Sun in a Sunday email.

Belodoff told the Sun last week that he sees the new law as formalizing that alleged unwritten policy and Gov. Brad Little’s previous request for a policy.

“HB 668 effectively memorializes and implements the previously-unwritten Medicaid Exclusion Policy by prohibiting the use of public funds [including Medicaid payments] for any gender-affirming care to treat gender dysphoria,” Judge Patricco wrote in his order.

In an interview last week, before the judge’s limited block, bill co-sponsor Rep. Bruce Skaug, R-Nampa, told the Sun the bill was reviewed by attorneys who specialize in constitutional law and other areas.

“I remain confident the final judicial opinions will uphold the Idaho statute after all arguments have been weighed,” Skaug texted the Sun on Sunday.

The bill, Skaug told the Sun in an interview last week, passed by wide margins “because we do not want our tax dollars being used for this controversial procedure. That’s the purpose. And I think that purpose is going to have the desired effect immediately.”

Belodoff said he “cannot truly express how the clients feel.”

“It is no different than other minorities who have a history of being subjected to state sponsored and sanctioned discrimination,” he told the Sun.

It’s unclear how many Idahoans on Medicaid receive gender-affirming care

It isn’t clear how many Idaho Medicaid patients receive gender-affirming care.

Health and Welfare spokesperson AJ McWhorter last week declined to answer questions about Medicaid’s gender-affirming care coverage and costs, citing litigation. In January, McWhorter told the Sun the agency hasn’t covered “any surgeries for gender dysphoria for adults or youth.”

Belodoff told the Sun in an email last week that he has no way of knowing how many Idahoans on Medicaid have received or been denied gender-affirming care.

Belodoff represents the seven unnamed Idahoans suing the Idaho Department of Health and Welfare and state health officials, alleging Idaho Medicaid delayed or denied their requests for coverage. In June, the lawsuit — filed in 2022 — expanded from two Medicaid patients to include five additional patients and to add House Bill 668 to its legal claims.

“The initial exclusion policy was unwritten as far as we know of not authorizing some surgeries,” Belodoff told the Sun in a Sunday email. “The policy was not published in a Rule or a statute until HB 668 became law in late March 2024. Until July 1st transgender persons were able to obtain other gender affirming care that was medically necessary to treat gender dysphoria. “

The lawsuit filings included a declaration by Dr. Misa Perron-Burdick, an Idaho OB-GYN. In 2023, she wrote she met a transmasculine patient — not named in the filing — who wanted a hysterectomy for heavy and painful bleeding during menstruation, called dysmenorrhea.

“In my expert opinion, hysterectomy is an appropriate and medically necessary treatment for painful periods in this patient who had tried medication treatment for dysmenorrhea,” Dr. Perron-Burdick wrote.

But, she wrote, “Medicaid denied the request for not meeting … criteria for medical necessity,” and a “reviewer stated that while the patient had some bleeding, the majority of the notes indicated that this was a planned elective surgery for gender reassignment.”

Medicaid, over the last year, “has authorized hysterectomies for 3 cisgendered patients for the diagnosis of painful periods,” Dr. Perron-Burdick wrote. “Although this transgender patient has the exact same complaint and indication for hysterectomy as my cisgender patients, Medicaid has denied him necessary medical care.”

According to the law, public funds cannot cover hormone therapy, puberty blockers or surgical procedures for the purpose “to affirm the individual’s perception” of their sex.

Public funds can cover those medications and procedures outside of that purpose, including:

When a surgical operation or medical intervention is “necessary to the health of the person on whom it is performed.”

To treat infections, injuries, diseases or disorders “caused or exacerbated by … gender transition procedures.”

And when “performed in accordance with the good faith medical decision of a parent or guardian of a child or an adult born with a medically verifiable genetic disorder of sex development.”

State property, facilities or buildings can’t be used “to provide the surgical operations or medical interventions,” the law states.

Doctors or health care professionals employed by state, county or local governments can’t provide those services “in the course and scope of (public) employment,” the law states.

Public employees or officers who intentionally violate the bill could face misuse of public funds charges.

Health West, an-Idaho based federally qualified health center, will stop providing gender-affirming care in response to “various legal and political events … governing gender affirming or transgender care” in Idaho, Utah and Wyoming, according to an internal email published in lawsuit filings.

It’s not clear how other Idaho federally qualified health centers are affected by the new law.

A study recently found gender non-conforming people were at higher risk for being in a lower socio-economic status. Around 300,000 Idahoans are on Medicaid, which largely covers low-income and disabled people.

About 7,000 Idaho adults and 1,000 Idahoans age 13 and up are transgender, according to estimates from the University of California-Los Angeles.

House Bill 668’s impact on Idaho government employee health insurance unclear

Idaho’s state employee health insurance plan, which switches to Regence this year, also appears to be affected by the ban. But spokespeople for Regence and the Idaho Office of Group Insurance didn’t directly answer the Sun’s questions about if the law prevents the state insurance plan from covering gender-affirming care.

The Idaho Department and Administration and Office of Group Insurance “has communicated to Regence that no public funds can be used to cover gender affirming care under the state plan, consistent with House Bill 668,” agency spokesperson Kim Rau told the Sun in an email on June 26.

Regence is “committed to complying with all applicable state and federal laws, while remaining sensitive to the individual health and well-being concerns of our members,” spokesperson Lou Riepl told the Sun in an email on June 26.

Skaug told the Sun last week “we did not take a position” on how the bill would apply to Idaho’s state insurance plan.

“In some other states, or in similar situations, sometimes the insurance company will require the state employee to pay an additional premium for something that’s been prohibited,” Skaug said.

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