NYS Acknowledges Gender Non-Conforming New Yorkers’ Right to Health Coverage

The Legal Aid Society, Willkie Farr & Gallagher LLP, and the Sylvia Rivera Law Project lauded a decision rendered by the New York State Department of Health (NYSDOH) that acknowledges gender non-conforming New Yorkers’ right to health coverage under Medicaid.
 
“No New Yorker should be denied medically necessary, gender affirming health care, and we are glad to see that Albany finally recognizes this right,” said Heidi Bramson, Staff Attorney with the Health Law Unit at The Legal Aid Society. “The Legal Aid Society is hopeful that this historic, precedent setting decision will inform insurance plans, health care providers, judges and gender non-conforming individuals that health care discrimination on the basis of gender identity is illegal and it has no place in New York.”
 
“We are pleased with the Department of Health’s decision in this important case, which should further cement the rights obtained in Cruz v. Zucker - that transgender, non-binary, and gender non-conforming New Yorkers have access to medically necessary, gender affirming health care,” said Wesley Powell, partner at Willkie Farr & Gallagher.

"It is upsetting for AV and every other non-binary New Yorker that legal intervention was necessary in this case. It should be understood that every New Yorker must be provided with healthcare regardless of gender identity and expression. We hope that the Department of Health takes this issue seriously and begins to inform more New Yorkers of their right to access healthcare and that the Department of Health enforces the true scope of the Cruz ruling with all their contracting health and insurance companies,” said Mik Kinkead, Staff Attorney with the Sylvia Rivera Law Project.

Background
In 2014, The Legal Aid Society, the Sylvia Rivera Law Project and Willkie Farr & Gallagher filed Cruz v. Zucker to challenge a New York State regulation that banned Medicaid coverage for transgender health care. That case led to a repeal of the ban and an amended regulation, which became effective in December 2016, requiring Medicaid coverage for all medically necessary transgender health care for individuals diagnosed with gender dysphoria (GD).  The Legal Aid Society now regularly represents transgender Medicaid recipients to enforce the right to gender affirming care secured through Cruz v. Zucker.

AV is one such client. AV is a 27-year-old transgender person and identifies as non-binary. On February 22, 2017 AV’s doctor requested Medicaid coverage for a reduction mammoplasty as medically necessary treatment for AV’s GD. This procedure was denied by AV’s Medicaid plan, Healthfirst. AV requested a fair hearing to challenge the denial, which was held on June 8, 2017. The Decision, issued by New York State on June 14, 2017, upheld Healthfirst’s denial. Disturbingly, the administrative law judge (ALJ) found that the regulation does not apply to non-binary individuals, thereby imposing a requirement that does not exist within the regulation: that individuals must be transitioning strictly either from male to female or from female to male.    

On October 6, 2017, Legal Aid submitted a request for a corrected decision. However, despite months of waiting, Legal Aid did not receive a response. In January of 2018, a group of advocates addressing the ongoing barriers to gender affirming care for transgender people sent a letter to the New York State Department of Health (DOH) alerting them to these challenges. In this letter, AV’s case was mentioned and a request for intervention was made. While DOH did eventually respond to Legal Aid in late March, stating that they were considering our request, there was still no resolution or significant movement weeks later.
On April 27, 2018, Cruz counsel sent a letter to New York State’s Office of the Attorney General alerting it that the erroneous fair hearing decision was a violation of the final judgment and order in Cruz and informing it of our intention to file a motion to enforce the judgment. One week later, on May 4, 2018, DOH informed Legal Aid that AV’s fair hearing decision would be vacated because the regulation does provide coverage for non-binary individuals and that a new decision would be issued ordering coverage for AV’s medically necessary health care. That decision was issued on May 11, 2018.
 
The decision is accessible here.