Removing the constraints to coverage of gender-confirming healthcare by state medicaid programs

Iowa Law Review

Volumn 97, Issue 4, 2012, Pages 1329-1362

  True, Nicole M ^a  

^a UNIVERSITY OF IOWA COLLEGE OF LAW   (United States)

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EID: 84861865692     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (173)

1. J.D. v. Lackner, 145 Cal. Rptr. 570, 570-71 (Ct. App. 1978).
2. This Note adopts Dean Spade's phrase gender-confirming healthcare as a way to refer to the various procedures, therapies, and surgeries physicians and mental health professionals use to treat persons with GID, which includes SRS and hormone therapy. See Dean Spade, Medicaid Policy & Gender-Confirming Healthcare for Trans People: An Interview with Advocates, 8 SEATTLE J. SOC. JUST. 497 (2010).
3. Liza Khan, Note, Transgender Health at the Crossroads: Legal Norms, Insurance Markets, and the Threat of Healthcare Reform, 11 YALE J. HEALTH POL'Y L. & ETHICS 375, 380-81, 387-402 (2011)
4. Medicare Program; National Coverage Decisions, 54 Fed. Reg.34,555, 34,572 (Aug. 21, 1989) ("Transsexual surgery for sex reassignment of transsexuals is controversial. Because of the lack of well controlled, long-term studies of the safety and effectiveness of the surgical procedures and attendant therapies for transsexualism, the treatment is considered experimental. Moreover, there is a high rate of serious complications of these surgical procedures. For these reasons, transsexual surgery is not covered.")
5. see also Smith v. Rasmussen, 249 F.3d 755 (8th Cir. 2001) (rejecting plaintiff's claim for coverage of genderconfirmingtreatment under Medicaid)
6. Rush v. Parham, 625 F.2d 1150 (5th Cir. 1980) (same)
7. remanded to sub nom. Rush v. Johnson, 565 F. Supp. 856 (N.D. Ga. 1983)
8. Ravenwood v. Daines, No. 06-CV-6355-CJS, 2009 WL 2163105 (W.D.N.Y. July 17, 2009) (same)
9. Casillas v. Daines, 580 F. Supp. 2d 235 (S.D.N.Y. 2008) (same)
10. Denise R. v. Lavine, 347 N.E.2d 893 (N.Y. 1976) (same).
11. See DEBORAH RUDACILLE, THE RIDDLE OF GENDER: SCIENCE, ACTIVISM, AND TRANSGENDER RIGHTS 3 (2005)
12. STEPHEN WHITTLE, RESPECT AND EQUALITY: TRANSSEXUAL AND TRANSGENDER RIGHTS 22 (2002).
13. Id. at 33. Intersex conditions include conditions "such as congenital adrenal hyperplasia, an anomaly of the genitalia, or a chromosomal abnormality." DSM-IV-TR MENTAL DISORDERS: DIAGNOSIS, ETIOLOGY, AND TREATMENT 1081 (Michael B. First & Allan Tasman eds., 2004) [hereinafter DSM-IV-TR MENTAL DISORDERS].
14. WPATH "is an international association devoted to the understanding and treatment of individuals with gender identity disorders," which currently has "over 300 physician, psychologist, social scientist, and legal professional members, all of whom are engaged in research and/or clinical practice that affects the lives of transgender and transsexual people." THE WORLD PROF'L ASS'N FOR TRANSGENDER HEALTH, WPATH CLARIFICATION ON MEDICAL NECESSITY OF TREATMENT, SEX REASSIGNMENT, AND INSURANCE COVERAGE IN THE U.S.A. 1 (2008) [hereinafter WPATH CLARIFICATION ON MEDICAL NECESSITY].
15. Anne A. Lawrence, Gender Identity Disorders in Adults: Diagnosis and Treatment, in HANDBOOK OF SEXUAL AND GENDER IDENTITY DISORDERS 423, 424 (David L. Rowland & Luca Incrocci eds., 2008)
16. WORLD PROF'L ASS'N FOR TRANSGENDER HEALTH, http://www.wpath.org(last visited Jan. 30, 2012). Gender dysphoria is now known as gender identity disorder; however, as is discussed in note 30 below, the American Psychiatric Association may again change the name of this diagnosis back to gender dysphoria in its newest revision of the Diagnostic and Statistical Manual, the DSM-V.
17. While this Note does not address whether it is appropriate for the APA to list GID as a mental illness, it is significant to note that "[t]he designation of gender identity disorders as mental disorders is not a license for stigmatization, or for the deprivation of gender patients' civil rights. The use of a formal diagnosis is often important in offering relief, providing health insurance coverage, and guiding research to provide more effective future treatments." THE HARRY BENJAMIN INT'L GENDER DYSPHORIA ASS'N, STANDARDS OF CARE FOR GENDER IDENTITY DISORDERS 6 (6th ed. 2001), available at http://www.wpath.org/documents2/socv6.pdf [hereinafter THE HARRY BENJAMIN STANDARDS OF CARE]. For a discussion of the arguments against designating GID as a medical condition
18. see Kari E. Hong, Categorical Exclusions: Exploring Legal Responses to Health Care Discrimination Against Transsexuals, 11 COLUM. J. GENDER & L. 88, 104-07 (2002)
19. Jonathan L. Koenig, Note, Distributive Consequences of the Medical Model, 46 HARV. C.R.- C.L. L. REV. 619 (2011).
20. Standards of Care, WORLD PROF'L ASS'N FOR TRANSGENDER HEALTH, http://www.wpath.org/publications-standards.cfm (last visited Jan. 30, 2012).
21. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 579 (4th ed., text rev. 2000) [hereinafter APA, DSM-IV-TR].
22. Hastings Wyman, Transgender and Bisexual Issues in Public Administration and Policy, in HANDBOOK OF GAY, LESBIAN, BISEXUAL, AND TRANSGENDER ADMINISTRATION AND POLICY 125, 126 (Wallace Swan ed., 2004) (quoting S.F., CAL., POLICE CODE art. 33 (1998)) (internal quotation marks omitted).
23. KAPLAN & SADOCK'S COMPREHENSIVE TEXTBOOK OF PSYCHIATRY 1979 (Benjamin J. Sadock & Virginia A. Sadock eds., 8th ed. 2005).
24. The APA is in the process of revising the DSM and is set to publish the revised DSM in 2013. Timeline, AM. PSYCHIATRIC ASS'N DSM-5 DEV., http://www.dsm5.org/about/Pages/Timeline.aspx (last visited Jan. 30, 2012).
25. The APA's proposed revision of GID includes a change in the name of the condition back to gender dysphoria. P 01 Gender Dysphoria in Adolescents or Adults (Proposed Revision), AM. PSYCHIATRIC ASS'N DSM-5 DEV., http://www.dsm5.org/ProposedRevisions/Pages/proposedrevision.aspx?rid=482 (last updated May 4, 2011). In addition to the name change, the APA has proposed a revision to the diagnostic criteria, which includes modifications to the indicators and a reduction in the number of indicators required for diagnosis. Id. Finally, the proposed revision also adds an additional requirement-that "[t]he condition is associated with clinically significant distress or impairment in social, occupational, or other important areas of functioning, or with a significantly increased risk of suffering, such as distress or disability." Id. This website also discusses the APA's rationales for these changes, one of which was that the APA "chose not to make any decision between its categorization as a psychiatric or a medical condition and wished to avoid jeopardizing either insurance coverage or treatment access.
26. P01 Gender Dysphoria in Adolescents or Adults (Rationale), AM. PSYCHIATRIC ASS'N DSM-5 DEV., http://www.dsm5.org/ProposedRevisions/Pages/ proposedrevision.aspx?rid=482# (last visited Jan. 30, 2012).
27. See O'Donnabhain v. Comm'r, 134 T.C. 34, 37 n.7 (2010), acq. 2011-47 I.R.B. 789
28. Id. at 449; see also Eric B. Gordon, Transsexual Healing: Medicaid Funding of Sex Reassignment Surgery, 20 ARCHIVES SEXUAL BEHAV. 61, 68-71 (1991)
29. citing FRIEDEMANN PFÄFFLIN & ASTRID JUNGE, SEX REASSIGNMENT: THIRTY YEARS OF INTERNATIONAL FOLLOW-UP STUDIES AFTER SEX REASSIGNMENT SURGERY: A COMPREHENSIVE REVIEW, 1961-1991 (Roberta B. Jacobson & Alf B. Meier trans., 1998) (1992))
30. citing R. Green & D. T. Fleming, Transsexual Surgery Follow-Up: Status in the 1990s, 1 ANN. REV. SEX RES. 163, 163-74 (1990)).
31. Smith v. Rasmussen, 249 F.3d 755, 757 (8th Cir. 2001); see 42 U.S.C. §§ 1396 to 1396w-5.
32. Pinneke v. Preisser, 623 F.2d 546, 549 (8th Cir. 1980); see 42 C.F.R. §§ 440.1-440.390 (2010).
33. Beal v. Doe, 432 U.S. at 444-45.
34. See, e.g., Hern v. Beye, 57 F.3d 906, 911 (10th Cir. 1995) ("The purpose of Medicaid as stated in the Act is to enable states to provide medical treatment to needy persons 'whose income and resources are insufficient to meet the cost of necessary medical services.'" (quoting 42 U.S.C. § 1396 (1994))); Weaver v. Reagen, 886 F.2d 194, 198 (8th Cir. 1989) ("This provision[, 42 U.S.C. § 1396a(a)(17),] has been interpreted to require that a state Medicaid plan provide treatment that is deemed 'medically necessary' in order to comport with the objectives of the Act.")
35. Pinneke v. Preisser, 623 F.2d 546, 548 n.2 (8th Cir. 1980)
36. (citing Beal v. Doe, 432 U.S. at 444-45 & n.9) ("This standard of medical necessity is not explicit in the statute, but has become judicially accepted as implicit to the legislative scheme and is apparently endorsed by the Supreme Court."). But
37. see Preterm, Inc. v. Dukakis, 591 F.2d 121, 124 (1st Cir. 1979) ("It does not seem, however, that the words 'necessary medical services' are properly read as a substantive requirement imposed on the states. Instead, this section merely specifies for whose benefit federal funds are to be appropriated-those 'individuals, whose income and resources are insufficient to meet the costs of necessary medical services.'" (quoting 42 U.S.C. § 1396 (1976))).
38. Preterm, 591 F.2d at 125.
39. U.S.C. § 1396a(a)(17) (2006); see also Beal v. Doe, 432 U.S. at 444 ("This language confers broad discretion on the States to adopt standards for determining the extent of medical assistance, requiring only that such standards be 'reasonable' and 'consistent with the objectives' of the Act.").
40. Weaver, 886 F.2d at 198
41. quoting Rush v. Parham, 625 F.2d 1150, 1156 n.11 (5th Cir. 1980)
42. remanded to sub nom. Rush v. Johnson, 565 F. Supp. 856 (N.D. Ga. 1983)) (internal quotation marks omitted). In Weaver, the Missouri legislature limited coverage of AZT to AZT prescribed in accordance with the approved usages provided for by the FDA. Id. at 199. The Weaver court noted, In the face of widespread recognition by the medical community and the scientific and medical literature that AZT is the only available treatment for most persons with AIDS, we find that Missouri Medicaid's approach to its coverage of the drug AZT is unreasonable and inconsistent with the objectives of the Medicaid Act. Id. at 200
43. see also Rush v. Parham, 625 F.2d at 1156 (adopting the procedure Medicare uses to determine whether a particular treatment will be covered).
44. O'Donnabhain v. Comm'r, 134 T.C. 34, 69 (2010), acq. 2011-47 I.R.B. 789 ("[A] complete consensus on the advisability or efficacy of a procedure is not necessary.").
45. see also White v. Beal, 555 F.2d 1146, 1152 (3d Cir. 1977) ("The regulations permit discrimination in benefits based upon the degree of medical necessity but not upon the medical disorder from which the person suffers.").
46. Preterm, 591 F.2d at 125.
47. Smith v. Rasmussen, 249 F.3d 755, 759 (8th Cir. 2001) (quoting Weaver, 886 F.2d at 200) (internal quotation marks omitted)
48. see Rush v. Parham, 625 F.2d at 1156.
49. See S. REP. NO. 89-404, pt. 1, at 46 (1965), reprinted in 1965 U.S.C.C.A.N. 1943, 1986-89. ("The committee's bill provides that the physician is to be the key figure in determining utilization of health services-and provides that it is a physician who is to decide upon admission to a hospital, order tests, drugs and treatments, and determine the length of stay. Forthis reason the bill would require that payment could be made only if a physician certifies to the medical necessity of the services furnished.").
50. See, e.g., MINN. STAT. § 256B.0625, subdiv. 3a (2008) (amended 2011) ("Sex reassignment surgery is not covered.")
51. MONT. ADMIN. R. 37.79.303(q) (2010) ("In addition to any exclusions noted elsewhere in these rules, the following services are not covered benefits . . . transsexual surgery.")
52. NEB. ADMIN. CODE. § 18-003.01(30) (2010) ("NMAP does not cover . . . sex change procedures.").
53. See, e.g., ILL. ADMIN. CODE tit. 89, § 140.6(l) (2010) ("The following services are not covered under the Department's medical assistance programs . . . [m]edical or surgical transsexual treatment.")
54. MO. CODE REGS. ANN. tit. 22, § 10-2.060(30) (2010) (amended 2011) (excluding from coverage under the Missouri Medicaid Plan "[g]ender reassignment-health services and associated expenses of transformation operations, regardless of any diagnosis of gender role disorientation or psychosexual orientation or any treatment or studies related to gender reassignment; also, hormonal support for gender reassignment")
55. N.Y. COMP. CODES R. & REGS. tit. 18, § 505.2(l) (2010) ("Payment is not available for care, services, drugs, or supplies rendered for the purpose of gender reassignment (also known as transsexual surgery) or any care, services, drugs, or supplies intended to promote such treatment.").
56. See, e.g., IOWA ADMIN. CODE r. 441-78.1(4) (2010)
57. -130 MASS. CODE REGS. 405.418(A) (2006) ("MassHealth does not pay a CHC for performing, administering, or dispensing experimental, unproven, or otherwise medically unnecessary procedures . . . including . . . sexreassignment surgery . . . and any other related surgeries and treatments including pre- and post-sex-reassignment surgery hormone therapy.").
58. IOWA ADMIN. CODE r. 441-78.1(4).
59. A number of states have addressed this issue, including California, Georgia, Iowa, Minnesota, and New York. See, e.g., J.D. v. Lackner, 145 Cal. Rptr. 570 (Ct. App. 1978) (California permitting coverage)
60. G.B. v. Lackner, 145 Cal. Rptr. 555 (Ct. App. 1978) (same)
61. Rush v. Parham, 625 F.2d 1150 (5th Cir. 1980) (Georgia denying coverage on remand)
62. remanded to sub nom. Rush v. Johnson, 565 F. Supp. 856 (N.D. Ga. 1983)
63. Smith v. Rasmussen, 249 F.3d 755 (8th Cir. 2001) (Iowa denying coverage)
64. Pinneke v. Preisser, 623 F.2d 546 (8th Cir. 1980) (Iowa permitting coverage)
65. Doe v. Minn. Dep't of Pub. Welfare, 257 N.W.2d 816 (Minn. 1977) (Minnesota permitting coverage)
66. Ravenwood v. Daines, No. 06-CV-6355-CJS, 2009 WL 2163105 (W.D.N.Y. July 17, 2009) (New York denying coverage)
67. Casillas v. Daines, 580 F. Supp. 2d 235 (S.D.N.Y. 2008) (same)
68. Denise R. v. Lavine, 347 N.E.2d 893 (N.Y. 1976) (same).
69. J.D., 145 Cal. Rptr. at 572
70. G.B., 145 Cal. Rptr. at 559.
71. See, e.g., Smith, 249 F.3d at 760
72. Rush v. Parham, 625 F.2d at 1152
73. Casillas, 580 F. Supp. 2d at 237.
74. Pinneke, 623 F.2d at 547.
75. See Doe v. Minn. Dep't of Pub. Welfare, 257 N.W.2d 816, 820 (Minn. 1977)
76. J.D. v. Lackner, 145 Cal. Rptr. 570, 572 (Ct. App. 1978)
77. G.B. v. Lackner, 145 Cal. Rptr. 555, 556 (Ct. App. 1978). In J.D., the court made a broader statement about the medical necessity of SRS. The court determined that the state Medi-Cal program should cover SRS because "the proposed surgery is medically reasonable and necessary and that there is no other effective treatment method." 145 Cal. Rptr. at 572. The court further rejected the State's argument that the surgery is cosmetic or experimental. Id. ("We do not believe, by the wildest stretch of the imagination, that such surgery can reasonably and logically be characterized as cosmetic.").
78. THE TRANSGENDER LAW CTR. & THE CMTY. HEALTH ADVOCACY PROJECT, MEDI-CAL AND GENDER REASSIGNMENT PROCEDURES 1 (2002), available at http://www.transgenderlawcenter.org/pdf/MediCal%20Fact%20Sheet.pdf.
79. See IOWA ADMIN. CODE r. 441-78.1(4) (2010)
80. MINN. STAT. § 256B.0625, subdiv. 3a (2008) (amended 2011) ("Sex reassignment surgery is not covered."). As subsequently discussed in greater detail, the Eighth Circuit later held the Iowa regulatory provisions to be valid.
81. Smith v. Rasmussen, 249 F.3d 755, 761 (8th Cir. 2001). Similar provisions exist in at least twenty-two other states.
82. IOWA ADMIN. CODE r. 441-78.1(4).
83. See, e.g., Smith, 249 F.3d at 760
84. Rush v. Parham, 625 F.2d 1150, 1153 (5th Cir. 1980)
85. remanded to sub nom. Rush v. Johnson, 565 F. Supp. 856 (N.D. Ga. 1983)
86. Ravenwoood v. Daines, No. 06-CV-6355-CJS, 2009 WL 2163105, at *13 (W.D.N.Y. July 17, 2009)
87. Denise R. v. Lavine, 347 N.E.2d 893 (N.Y. 1976) (same).
88. See, e.g., Smith, 249 F.3d at 757 (SRS)
89. Rush v. Parham, 625 F.2d at 1152 (same)
90. Ravenwood, 2009 WL 2163105, at *1 (electrolysis and SRS)
91. Casillas, 580 F. Supp. 2d at 237 (hormones and SRS).
92. See, e.g., Rush v. Parham, 625 F.2d at 1153 (recipient of Supplemental Security Assistance)
93. Ravenwood, 2009 WL 2163105, at *1 (same)
94. Casillas, 580 F. Supp. 2d at 237 (same).
95. But see Smith, 249 F.3d at 757 (medically needy).
96. See, e.g., Smith, 249 F.3d at 760 (citing IOWA ADMIN. CODE r. 441-78.1(4)(b))
97. Ravenwood, 2009 WL 2163105, at *1
98. (citing N.Y. COMP. CODES R. & REGS. tit. 18 § 505.2(l)(2009))
99. Casillas, 580 F. Supp. 2d at 237 (same). Rush v. Parham involved a slightly different situation because Georgia did not have a regulatory or statutory provision that explicitly excluded coverage of SRS, but rather relied upon a provision that excluded all experimental treatments. Rush v. Parham, 625 F.2d at 1153. Ultimately, the Fifth Circuit remanded the case to the federal district court to determine whether SRS could reasonably be classified as an experimental treatment. Id. at 1156-57
100. remanded to sub nom. Rush v. Johnson, 565 F. Supp 856. The lower court ultimately determined that the state's classification of the procedure as experimental was reasonable.
101. Rush v. Johnson, 565 F. Supp. at 868.
102. Smith, 249 F.3d at 760-62.
103. Id. at 759 (quoting Beal v. Doe, 432 U.S. 438, 444 (1977)) (internal quotation marks omitted). The court specifically found the regulation reasonable because "the Department's research demonstrated the evolving nature of the diagnosis and treatment of gender identity disorder and the disagreement regarding the efficacy of sex reassignment surgery." Id. at 761.
104. Id. at 761 ("'Medicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs,' as long as the care and services that the states provide 'are provided in the best interests of the recipients.'" (quoting Alexander v. Choate, 469 U.S. 287, 303 (1985))).
105. O'Donnabhain v. Comm'r, 134 T.C. 34, 34 (2010), acq. 2011-47 I.R.B. 789.
106. For a detailed analysis of O'Donnabhain, see Susan L. Megaard, Scope of the Medical Expense Deduction Clarified and Broadened by New Tax Court Decision, 112 J. TAX'N 353 (2010).
107. O'Donnabhain, 134 T.C. at 36.
108. O'Donnabhain, 134 T.C. at 76. Because the court found that the SRS and hormone therapy were medically necessary, it declined to address whether the tax code required taxdeductible treatments to be medically necessary. Id. at 75-76.
109. Weaver v. Reagen, 886 F.2d 194, 199 (8th Cir. 1989)
110. accord Hern v. Beye, 57 F.3d 906, 911 (10th Cir. 1995)
111. See, e.g., Smith v. Rasmussen, 249 F.3d 755, 761 (8th Cir. 2001) (Iowa's regulation)
112. Casillas v. Daines, 580 F. Supp. 2d 235, 238 (S.D.N.Y. 2008) (New York's regulation)
113. Rush v. Johnson, 565 F. Supp. 856, 866-68 (N.D. Ga. 1983) (holding that the state properly denied coverage of Rush's SRS under Georgia's regulation denying coverage for experimental treatments). Two previous courts recognized the general medical necessity of SRS; however, these cases currently have little weight given that the states subsequently passed statutory and regulatory provisions explicitly excluding coverage of SRS.
114. See Pinneke v. Preisser, 623 F.2d 546, 549 (8th Cir. 1980)
115. Doe v. Minn. Dep't of Pub. Welfare, 257 N.W.2d 816, 819 (Minn. 1977). As discussed in Part III.B, not all states have statutory or regulatory provisions that preclude coverage for hormone therapy, but rather some limit the exclusion solely to SRS.
116. See Smith, 249 F.3d at 760
117. Rush v. Johnson, 565 F. Supp. at 868.
118. See Casillas, 580 F. Supp. 2d at 238
119. Rush v. Johnson, 565 F. Supp. at 868.
120. But see Smith, 249 F.3d at 760 (acknowledging that SRS is not an experimental form of treatment).
121. See Smith, 249 F.3d at 760-61.
122. O'Donnabhain v. Comm'r, 134 T.C. 34, 65 (2010), acq. 2011-47 I.R.B. 789 ("The Benjamin standards are widely accepted in the psychiatric profession, as evidenced by the recognition of the standards' triadic therapy sequence as the appropriate treatment for GID and transsexualism in numerous psychiatric and medical reference texts."); id. at nn.44-45
123. AM. MED. ASS'N HOUSE OF DELEGATES, RESOLUTION: 122 (A-08), REMOVING FINANCIAL BARRIERS TO CARE FOR TRANSGENDER PATIENTS 1, 2-3 n.7 (2008), available at http://www.tgender.net/taw/ama-resolutions.pdf ("An established body of medical research demonstrates the effectiveness and medical necessity of mental health care, hormone therapy and sex reassignment surgery as forms of therapeutic treatment for many people diagnosed with GID . . . .")
124. O'Donnabhain, 134 T.C. at 64-71.
125. citing Meriwether v. Faulkner, 821 F.2d 408, 412 (7th Cir. 1987)
126. Pinneke v. Preisser, 623 F.2d 546, 548 (8th Cir. 1980)
127. Sommers v. Iowa Civil Rights Comm'n, 337 N.W.2d 470, 473 (Iowa 1983)
128. Doe v. Minn. Dep't of Pub. Welfare, 257 N.W.2d 816, 819 (Minn. 1977)
129. Davidson v. Aetna Life & Cas. Ins. Co., 420 N.Y.S.2d 450, 453 (Sup. Ct. 1979)).
130. citing Gammett v. Idaho State Bd. of Corr., No. CV05-257-S-MHW, 2007 WL 2186896, at *8 (D. Idaho July 27, 2007)
131. Houston v. Trella, No. 04-1393(JLL), 2006 WL 2772748, at *20 (D.N.J. Sept. 25, 2006)
132. Kosilek v. Maloney, 221 F. Supp. 2d 156, 158 (D. Mass. 2002)
133. Farmer v. Hawk-Sawyer, 69 F. Supp. 2d 120, 121 n.3 (D.D.C. 1999)).
134. O'Donnabhain v. Comm'r, 134 T.C. 34, 67 (2010), acq. 2011-47 I.R.B. 789 ("[P]etitioner's expert Dr. Brown contends that in the case of severe GID, sex reassignment surgery is the only known effective treatment; indeed, Dr. Brown was unaware of any case where psychotherapy alone had been effective in treating severe GID." (emphasis added))
135. O'Donnabhain, 134 T.C. at 74-76.
136. Compare Pinneke v. Preisser, 623 F.2d 546, 549-50 (8th Cir. 1980) (finding SRS to be a medically necessary treatment for GID)
137. with Smith v. Rasmussen, 249 F.3d 755, 761 (8th Cir. 2001) (upholding a regulation excluding coverage of SRS).
138. See, e.g., Smith, 249 F.3d at 760.
139. IOWA ADMIN. CODE r. 441-78.1(4) (2010).
140. Smith, 249 F.3d at 761. The state did resurvey the state Medicaid agencies, and the results of this survey revealed that only seven of the forty-seven responding states covered SRS. Id. at 761 n.5.
141. O'Donnabhain v. Comm'r, 134 T.C. 34, 69 (2010), acq. 2011-47 I.R.B. 789 ("[A] complete consensus on the advisability or efficacy of a procedure is not necessary . . . .").
142. See id. at 68 (citing Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997)
143. Sommers v. Iowa Civil Rights Comm'n, 337 N.W.2d 470, 473 (Iowa 1983)
144. Doe v. Minn. Dep't of Pub. Welfare, 257 N.W.2d 816, 819 (Minn. 1977))
145. See NAT'L GUIDELINE CLEARINGHOUSE, PRACTICE GUIDELINE FOR THE TREATMENT OF PATIENTS WITH SCHIZOPHRENIA (2d ed. 2009), available at http://www.guideline. gov/content.aspx?id=5217 (identifying several other ways of treating schizophrenia beyond medication, including various forms of psychosocial intervention and somatic therapies, such as electroconvulsive therapy)
146. NAT'L INST. OF MENTAL HEALTH, SCHIZOPHRENIA 6-9 (2009), available at http://www.nimh.nih.gov/health/publications/schizophrenia/schizophreniabooket- 2009.pdf (identifying genetics as one of the underlying causes of schizophrenia and listing several medications used to treat schizophrenia)
147. De-Yun Wang, Risk Factors of Allergic Rhinitis: Genetic or Environmental?, 1 THERAPEUTICS & CLINICAL RISK MGMT. 115, 116 (2005) ("A genetic background in terms of a family history of atopic disease has been the strongest risk factor for the development of allergic symptoms, irrespective of the varying prevalence and environmental risk factors in different societies.")
148. Allergic Rhinitis, MEDLINEPLUS, http://www.nlm.nih.gov/medlineplus/ency/ article/000813.htm (last visited Mar. 17, 2012) (listing several ways of treating allergic rhinitis, including lifestyle changes and avoidance techniques, allergy shots, and various medications).
149. One criticism lodged by opponents in New York against a proposal aimed at expanding Medicaid coverage to include SRS was that that it would be "an outrageous abuse of taxpayer dollars." Carl Campanile, Let Taxpayers Foot Sex-Op Bill: Panel, N.Y. POST (Sept.29, 2011, 12:18 AM), http://www.nypost.com/ p/news/local/let-taxpayers-foot-sex-op-bill-panel-syVzH88veFSKLnSXA76w9O (quoting state Conservative Party Chairman Mike Long) (internal quotation marks omitted). Another opponent of this effort stated simply that coverage "doesn't seem to be appropriate." Id. (quoting Kemp Hannon, New York Senate Health Committee Chairman) (internal quotation marks omitted). Ultimately, the proposal to coverSRS under the New York Medicaid system failed.
150. Carl Campanile, Cuomo's Office Kills Plan for Taxpayer-Funded Sex-Change Surgeries, N.Y. POST (Sept. 30, 2011, 1:13 PM), http://www.nypost.com/p/news/ local/cuomo-office-kills-plan-for-taxpayer-gunUNXZ3BKLtcyLGbvtKVK. While the rationale for the opposition may not be immediately clear, it is evident that strong opposition to such coverage exists.
151. See A Transforming Debate, MOD. HEALTHCARE, Aug. 14, 2006, at 36, 36 (noting that U.S. Senator Chuck Grassley, a republican from the State of Iowa, called the Governor of Washington, Christine Gregorie, to threaten a federal investigation after he learned that the Washington state appeals board had ordered Medicaid to reimburse two beneficiaries for their sex reassignment surgeries).
152. See Pinneke v. Preisser, 623 F.2d 546, 548 (8th Cir. 1980).
153. See, e.g., Watson v. Weeks, 436 F.3d 1152, 1160 (9th Cir. 2006) (finding a right exists)
154. Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 192 (3d Cir. 2004) (same)
155. Pinneke, 623 F.2d at 549
156. Doe v. Minn. Dep't of Pub. Welfare, 257 N.W.2d 816, 820 (Minn. 1977).
157. IOWA ADMIN. CODE r. 441-78.1(4)(2010)
158. MINN. STAT. § 256B.0625, subdiv. 3a (2008) (amended 2011).
159. See generally DeMare v. Minn. Dep't of Human Servs., No. A06-803, 2006 WL 2533922 (Minn. Ct. App. Sept. 5, 2006) (no constitutional claim argued on appeal)
160. Hare v. Minn. Dep't of Human Servs., 666 N.W.2d 427 (Minn. Ct. App. 2003) (decided on statutory grounds).
161. Smith v. Rasmussen, 249 F.3d 755 (8th Cir. 2001).
162. Smith, 249 F.3d at 757-58, 761-62. The Eighth Circuit has not addressed a case with an individual who is categorically needy, and thus the Eighth Circuit's holding in Pinneke that such a denial amounts to an arbitrary denial on the basis of diagnosis in violation of 42 C.F.R. § 440.230(c) (2010) remains good law.
163. See, e.g., Smith, 249 F.3d at 756 (finding the regulation reasonable because the Department of Health passed the regulation in accordance with proper rulemaking procedure and based the regulation upon medical opinion)
164. Ravenwood v. Daines, No. 06-CV-6355-CJS, 2009 WL 2163105, at *10-11 (W.D.N.Y. July 17, 2009) (denying the claim on the grounds that the plaintiff has no enforceable right and thus no claim under § 1983)
165. Casillas v. Daines, 580 F. Supp. 2d 235, 241-46 (S.D.N.Y. 2008) (same).
166. Weaver v. Reagen, 886 F.2d 194, 198-99 (8th Cir. 1989).
167. Id. at 200 (quoting Pinneke v. Preisser, 623 F.2d 546, 549 (8th Cir. 1980)).
168. Weaver, 886 F.2d at 198 ("It would be improper for the State of Missouri to interfere with a physician's judgment of medical necessity by limiting coverage of AZT based on criteria that admittedly do not reflect current medical knowledge or practice.").
169. O'Donnabhain v. Comm'r, 134 T.C. 34, 68-69 (2010), acq. 2011-47 I.R.B. 789
170. O'Donnabhain, 134 T.C. at 68
171. citing Maggert v. Hanks, 131 F.3d 670, 671 (7th Cir. 1997)
172. Sommers v. Iowa Civil Rights Comm'n, 337 N.W.2d 470, 473 (Iowa 1983)
173. Doe v. Minn. Dep't of Pub. Welfare, 257 N.W.2d 816, 819 (Minn. 1977)).