By Dara Kam ©2023 The News Service of Florida
TALLAHASSEE — A federal judge has rejected a request by Gov. Ron DeSantis’ administration to shield a top health official from testifying in a lawsuit challenging the state’s prohibition on Medicaid coverage of gender-affirming care for transgender people.
State attorneys have been wrangling with plaintiffs’ lawyers seeking to depose Agency for Health Care Administration Secretary Jason Weida, arguing that, under what is known as the “apex doctrine,” Weida should not have to testify because he is a high-ranking official.
But U.S. District Judge Robert Hinkle on Tuesday denied the state’s request for a protective order to block Weida’s deposition, finding that he likely has “relevant, indeed significant, information not available from other sources.”
Before his appointment as secretary this year, Weida was the agency’s assistant deputy secretary for Medicaid policy and Medicaid quality at a time when it developed a rule that blocked payments to healthcare providers for treatments such as puberty blockers, hormone therapy and surgeries for transgender people.
The agency adopted the rule last summer, basing its decision, at least in part, on a report concluding that the targeted treatments are “not consistent with generally accepted professional medical standards and are experimental and investigational.”
A group of plaintiffs filed a federal lawsuit in September challenging the rule. The plaintiffs’ legal team has clashed with the agency’s lawyers, who balked at releasing documents and other information. While some records have been protected from public scrutiny, others show that Weida was an architect of the report and was instrumental in the creation of the rule.
The records showed Weida “had perhaps the most prominent role” in the promulgation of the rule, the plaintiffs’ lawyers argued in a March 29 response to the state’s request for a protective order to shield Weida from being deposed.
Weida “personally chose” the experts who contributed to the report and “had many private conversations with these consultants (and perhaps others) where he shaped the contents of their reports … Within AHCA, Mr. Weida was the face of the antitransgender push, controlling the organization’s messaging,” the plaintiffs’ response said.
Hinkle’s ruling Tuesday pointed to documents and testimony detailing Weida’s role.
“The record includes documentary evidence from which one could conclude that some consultants and experts were advocates more than witnesses and that Mr. Weida himself had communications directly with them,” Hinkle wrote. “At Mr. Weida’s insistence, some of the communications occurred only by telephone, ensuring that nobody else would know their contents.”
The judge also wrote that the “process by which this rule was adopted — including whether the required public hearing was just a charade to support a predetermined result — is relevant. Whether the consultants who appeared in support of the rule were hired not for their expertise but for their predetermined viewpoint is relevant. Whether the experts who will testify for the defense at the trial were coached by Mr. Weida is relevant.”
The plaintiffs contend in the lawsuit that treatment of gender dysphoria is “medically necessary, safe and effective” for transgender children and adults. The federal government defines gender dysphoria as clinically “significant distress that a person may feel when sex or gender assigned at birth is not the same as their identity.”
The lawsuit alleges that the state’s prohibition on Medicaid coverage for gender dysphoria is unconstitutional and violates federal laws prohibiting discrimination based on sex. Costs of surgeries, services and medications can run to thousands of dollars per month.
The plaintiffs, who include adults, children and the children’s parents, are being represented by groups including Lambda Legal Defense and Education Fund, Inc., Southern Legal Counsel, Inc., Florida Health Justice Project and National Health Law Program and the Pillsbury Winthrop Shaw Pittman, LLP firm.
DeSantis’ administration has authorized more than $1.3 million for legal and expert-witness fees in the dispute, according to a review of state records by The News Service of Florida shows.
The expert witness costs in the case are being run through the Holtzman Vogel Baran Torchinsky & Josefiak, PLLC law firm. The Agency for Health Care Administration in July approved a $950,000 contract with the firm to represent the state in the litigation. The firm previously signed separate contracts totaling $28,830 for “legal counsel and representation in matters including but not limited to Medicaid rulemaking and subsequent litigation.” The state has paid Holzman $514,456.53 thus far, the records show.
Florida is among Republican-led states embracing numerous measures to restrict or limit transgender care for minors and adults. DeSantis, who is widely viewed as a potential front-runner in the 2024 GOP presidential race, has elevated the issue by frequently raising it in speeches and calling gender-affirming treatment “child mutilation.”
In addition to the ban on Medicaid reimbursements, the DeSantis administration and the GOP-controlled Florida Legislature are targeting care for transgender people in other ways.
For example, at the request of the DeSantis administration, state medical boards adopted rules banning doctors from using gender-affirming care such as puberty blockers, hormone therapy and surgeries to treat minors diagnosed with gender dysphoria. The boards’ rules also are being challenged in federal court.
Meanwhile, the state Senate this week approved a measure that would enshrine the boards’ rules into Florida law and impose some restrictions on treatment for transgender adults. The bill also is expected to pass the House.
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