Rush v. Parham

• Decision Date: 02 August 1977
• Docket Number: Civ. A. No. C76-1445A.
• Citation: 440 F. Supp. 383
• Parties: Carolyn RUSH (Pseudonym) v. T. M. "Jim" PARHAM et al.
• Court: U.S. District Court — Northern District of Georgia

440 F. Supp. 383

Carolyn RUSH (Pseudonym) v. T. M. "Jim" PARHAM et al.

Civ. A. No. C76-1445A.

United States District Court, N. D. Georgia, Atlanta Division.

August 2, 1977.

Kenneth G. Levin, Atlanta Legal Aid Society, Inc., Atlanta, Ga., for plaintiff.

Arthur K. Bolton, Stephen L. Cotter, Jefferson J. Davis, Atlanta, Ga., for State defendant.

Julian M. Longley, Jr., Asst. U. S. Atty., Carl H. Harper, Regional Atty., Stephen P. Georgeson, Eve H. Goldstein, Asst. Regional Attys., Dept. of HEW, Atlanta, Ga., for Federal defendant.

ORDER

RICHARD C. FREEMAN, District Judge.

This is an action for declaratory, injunctive, and mandamus relief and damages instituted by plaintiff Carolyn Rush,¹ an individual eligible for Medicaid coverage under 42 U.S.C. § 1396 et seq. hereinafter "Title XIX" or "Medicaid", against the Commissioner of the Georgia Department of Medicaid Services hereinafter the "State defendant" who denied plaintiff's application for Medicaid reimbursement of proposed transsexual surgery expenses for inpatient hospital and physicians' services, and against the Secretary of the U. S. Department of Health, Education, and Welfare hereinafter the "Federal defendant" for approving the State Plan. The jurisdiction of this court is invoked pursuant to 28 U.S.C. §§ 1343, 1361, and the doctrine of pendent jurisdiction.

The matters presently before the court are: plaintiff's motion to amend the complaint, plaintiff's motion for summary judgment, and Federal defendant's cross-motion for summary judgment. Before turning to the merits of the instant motions, a brief review of the nature and scope of the Medicaid program and a recitation of the salient facts, are warranted.

The purpose of the federal Medicaid program is to enable

each State, as far as practicable under the conditions in such States, to furnish . . . medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services . . ..

42 U.S.C. § 1396. The program forms an integral part of the Congressional "scheme of cooperative federalism" established by the Social Security Acts, 42 U.S.C. § 301 et seq. King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). Under the Medicaid program, federal funding is offered to the states within a statutory framework defining eligibility, medical assistance, and local administration. Although the program is voluntary for the states, once participation is elected, certain federal requirements must be heeded. Shea v. Vialpando, 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120 (1974).

Title XIX's broad framework and general language allow participating states to tailor a State Medicaid Plan to local needs and conditions. A great heterogeneity of State Plans has thus resulted. Although the states have great latitude in their discretion, the State Medicaid Plans must meet certain statutory requirements to be approved by the Secretary of Health, Education, and Welfare for funding. 42 U.S.C. § 1396a(b).

The Medicaid Act and its attendant regulations establish minimum requirements but also offer optional provisions which a state may add to its local plan. For example: The state must provide medical assistance coverage to the "categorically needy" (those receiving assistance under one of the Social Security assistance programs), but may, as well, provide coverage to the "medically needy" (those ineligible for categorical assistance but unable to finance all their medical needs).² The state must provide five categories of services and procedures benefits including: inpatient hospital services; outpatient hospital services; other laboratory and x-ray services; skilled nursing, early diagnosis and screening, and family planning services; and physicians' services, 42 U.S.C. §§ 1396a(a)(13)(B), 1396d(a)(1)-(5), but may provide benefits for twelve optional procedures, as well. 42 U.S.C. § 1396a(a)(13)(C). The Medicaid program thus grants the states discretion once certain minimum federal requirements are satisfied.

Georgia has elected to participate in the Medicaid program and its State Plan has been duly approved by the Secretary of H.E.W. Among the Georgia State Plan provisions and policies are the following:

"No reimbursement will be made for experimental surgery. e. g., . . . transsexual operations."

State Medicaid Plan, Attachment 3.1A, Page 2b, Item 51.

"Reimbursement will not be made for the following:

a. Cosmetic Surgery . . .

g. Experimental Surgery, e. g., transsexual operations."

Policy Manual for Physicians Services, § 203.5, Item 17.

"In no case is a procedure/service, which is legal under Georgia Law absolutely prohibited for reimbursement."

Policy Manual for Physicians Services, § 200.

The Plaintiff, a state recipient of Supplemental Security Income, 42 U.S.C. § 1381 et seq., is eligible for Medicaid assistance, 42 U.S.C. § 1396. The plaintiff has been diagnosed by at least two physicians as a true transsexual, who is biologically male but psychologically female. The plaintiff has both male genitalia and female breasts, has cross-dressed for five years, and has sought sex reassignment surgery for eight years. After an extensive examination, plaintiff's psychiatrist and urological surgeon³ have communicated their diagnosis and proposed treatment to the plaintiff, plaintiff's counsel, and the State defendant:

The diagnosis in this case is definitely that of transsexualism. She has made a mature decision in regard to sex reassignment surgery. I feel that such surgery is urgently indicated because of the feelings of despair and frustration which she has had in regard to her condition. There is no approach other than surgery which can alleviate her depression and remove the threat of suicide.⁴

Plaintiff has applied to the State defendant for Medicaid coverage of the costs of inpatient hospital care and physicians' services for the proposed sex reassignment surgery. The State defendant has denied plaintiff's application on the grounds that transsexual operations are expressly excluded from the Georgia State Plan.

Plaintiff instituted this action on September 7, 1976 contending that the medical assistance coverage requested: (1) is of the type required to be provided by the State Plan, 42 U.S.C. § 1396a(a)(13)(B), 1396d(a)(1)-(5); (2) is not barred by the unavailability of the services within the state, 45 C.F.R. § 248.10(a)(2)(ii); (3) may not be denied because of the "diagnosis, type of illness or condition, . . ." 45 C.F.R. § 249.10(a)(5)(i); (4) must be provided as it is in "the best interests" of this recipient, 42 U.S.C. § 1396a(a)(19); (5) is unlawfully prohibited by the State Plan in violation of 42 U.S.C. § 1396 et seq., 42 U.S.C. § 1983, and the Equal Protection Clause of the Fourteenth Amendment.⁵ In addition, plaintiff argues that because the State Plan is unlawful, it must be disapproved by the Federal defendant, 42 U.S.C. § 1396a(b), and the benefits sought by plaintiff must be provided.

The State defendant responds that transsexual surgery, the medical assistance for which Medicaid coverage has been requested, is: (1) experimental; (2) cosmetic; (3) unsuitable for this individual; (4) unavailable at this juncture as certain administrative steps must first be taken in several areas (e. g., provider agreements, 45 C.F.R. § 250.21; limits on professional fees, 45 C.F.R. § 250.30(b)(3), sterilization prerequisites, 45 C.F.R. § 205.35; future utilization review 45 C.F.R. §§ 250.18, 250.19; and informed consent); and (5) unnecessary. For these reasons, the State asserts that it is justified in denying Medicaid coverage for transsexual surgery, generally, and to this plaintiff, individually.

The Federal defendant limits consideration of this action to plaintiff's allegation that the Secretary of H.E.W. wrongfully approved the State Plan. The Federal defendant opposes plaintiff's claim, asserting that the Secretary's approval is discretionary and in this instance satisfies a test of reasonableness. Further, it is asserted that: (1) the State Plan comports with federal requirements of sufficiency and reasonableness, 45 C.F.R. § 249.10(a)(5)(i); (2) the Secretary of H.E.W. acted properly in approving the Georgia State Plan; and (3) sex reassignment surgery is not the only treatment which experts recommend for transsexuals. The Federal defendant opposes plaintiff's motion for summary judgment and offers a cross-motion for summary judgment in its favor.

Plaintiff's motions to amend the complaint and for summary judgment and Federal defendant's cross-motion for summary judgment will be considered seriatim.

MOTION TO AMEND COMPLAINT

Plaintiff's motion to amend the complaint pursuant to Rule 15(a) Fed.R.Civ.P. bears three procedural and two substantive parts. All should be viewed in light of the advice of the rule that such motions should be freely granted and the general philosophy of the rules that liberal notice pleading will facilitate speedy adjudication of the presented claims upon their respective merits. C. Wright & A. Miller, Federal Practice and Procedure, § 1471 at 355 (1976). The procedural parts of the motion are prompted by a succession in public office holders and by government reorganization of departments and services. Federal defendant F. David Mathews, Secretary of H.E.W. and State defendant Sam Thurmond,⁶ Commissioner of Medicaid Services, named in their official capacities, have been succeeded in office by Joseph A. Califano and David Poythress, respectively, who will replace them in the case-caption. Substitution of parties who are public officers named in their official capacity is nearly automatic and proceeds here by order of this court. Rule 25(d)(1) Fed.R.Civ.P.; C. Wright & A. Miller, Federal Practice and Procedure, § 1960 at 676 (1976).

State defendant T. M. "Jim" Parham, named in his official capacity, has been succeeded in...