Matter of Brian L. v. Administration for Children's Services

• Decision Date: 13 May 2008
• Docket Number: M-2920.,M-2686.,M-2654.,1407.
• Parties: In the Matter of BRIAN L., Also Known as MARIAH L., Respondent, v. ADMINISTRATION FOR CHILDREN'S SERVICES, Appellant.
• Court: New York Supreme Court — Appellate Division

51 A.D.3d 488

859 N.Y.S.2d 8

2008 NY Slip Op 04381

In the Matter of BRIAN L., Also Known as MARIAH L., Respondent, v. ADMINISTRATION FOR CHILDREN'S SERVICES, Appellant.

1407.

M-2654.

M-2686.

M-2920.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 13, 2008.

Order, Family Court, New York County (Sheldon M. Rand, J.H.O.), entered on or about February 21, 2007, which granted the Law Guardian's motion for an order directing the Administration for Children's Services (ACS) to arrange for petitioner to have sex reassignment surgery and denied ACS' cross motion to dismiss the proceeding, unanimously reversed, on the law, without costs, the motion denied, the cross motion granted and the proceeding dismissed.

Petitioner was born a biological male but at some point during adolescence was diagnosed with gender identity disorder (GID), "which the American Psychiatric Association characterizes as a disjunction between an individual's sexual organs and sexual identity" (Smith v City of Salem, Ohio, 378 F3d 566, 568 [6th Cir 2004], citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, at 576-582 [4th ed 2000]).¹ Petitioner began receiving mental health and medical care for GID, including psychological and psychiatric treatment and hormone therapy aimed at developing secondary female sex characteristics. ACS was responsible for arranging and paying for petitioner's medical care since she was in foster care between 1995 and April 2006.²

In December 2005, petitioner, through her former Law Guardian, made a motion in Family Court seeking to compel ACS to provide her with all medical treatment recommended by her doctors for GID, including sex reassignment surgery, which for male-to-female individuals "`involves the removal of the external male sexual organs and the construction of an artificial vagina by plastic surgery. It is supplemented by hormone treatments that facilitate the change in secondary sex characteristics,' such as breast development" (Ulane v Eastern Airlines, Inc., 742 F2d 1081, 1083 n 4 [7th Cir 1984], cert denied 471 US 1017 [1985], quoting Comment, Transsexualism, Sex Reassignment Surgery, and the Law, 56 Cornell L Rev 963, 970 n 37 [1971]).

The motion was supported by the written reports of a psychologist, a psychotherapist and two medical doctors, each of whom had evaluated petitioner to determine whether she was a suitable candidate and ready for sex reassignment surgery. The psychologist, Rachlin, who specialized in treating GID, stated that, under the Standards of Care for GID published by the Harry Benjamin International Gender Dysphoria Association (the Harry Benjamin standards),³ petitioner was both eligible and ready for sex reassignment surgery. Rachlin also stated that the surgery was necessary for petitioner's emotional well-being. Wheeler, the psychotherapist, who specialized in diagnosing and treating GID, also concluded that, based upon the Harry Benjamin standards, petitioner was eligible and ready for sex reassignment surgery. Wheeler averred that sex reassignment surgery was medically necessary to alleviate petitioner's depression, anxiety disorder and post-traumatic stress disorder. Kreditor, a medical doctor, determined that sex reassignment surgery was indicated for petitioner because without it her emotional and behavioral problems, e.g., anxiety, borderline personality disorder, would "deteriorat[e]," thereby "hinder[ing] further relationship, adjustment, personal and professional growth." Lastly, Bartalos, an internist who provided petitioner with medical gender reassignment treatment, i.e., hormones, stated that sex reassignment surgery would provide petitioner with "[a] more perfect alignment of the appearance of [her] body and [her] mental gender," and was the "next needed step" in the course of her treatment.

ACS opposed the motion on the ground that it was only permitted to pay for medical treatments approved by Medicaid law and that Medicaid law prohibited payment for sex reassignment surgery. No evidence was submitted in support of the agency's opposition. Family Court granted the motion and directed ACS to arrange for petitioner to have the surgery, and ACS appealed.

A prior panel of this Court reversed the order and remanded the matter to ACS for further proceedings (32 AD3d 325 [2006]). The panel stated that "[w]hile the record contains evidence that the operation is the generally recognized successful treatment for gender identity disorder, the record is incomplete, and, therefore, this issue is not yet ripe for determination" (id. at 326). The panel directed ACS to provide Family Court "with a clear statement of the reasons for denial of this surgery" to facilitate meaningful judicial review of ACS' determination (id.).

Upon remand, ACS supplemented the record before Family Court with the affidavit of Pratt, its assistant commissioner in charge of matters related to the provision of medical services to foster children under ACS' care. Pratt explained that petitioner was a foster child who received medical care pursuant to article 5, title 11 of the Social Services Law, the state Medicaid law, and that "her [medical] coverage is defined by and limited by the Medicaid statute and regulations." Pratt further explained that state Medicaid law prohibited ACS from paying for sex reassignment surgery.

Pratt stated that, even assuming that ACS could legally pay for the surgery, it would not do so as a matter of discretion, because petitioner had not satisfied certain eligibility requirements for sex reassignment surgery under the Harry Benjamin standards. Specifically, petitioner did not have a psychological evaluation and psychotherapy if required or recommended, and she lacked demonstrable knowledge of costs, procedures, complications of various surgical procedures and an awareness of different competent surgeons. Pratt also stated that petitioner had not evinced that she was ready for the surgery under the criteria set forth in the Harry Benjamin standards; petitioner, according to Pratt, did not demonstrate that she had a stable, enduring and comfortable gender identity, and she did not show progress in dealing with work, family and interpersonal issues. Pratt averred, based upon multiple conversations with petitioner and information imparted to her by foster care staff, that petitioner "simply has not demonstrated the kind of serious, thoughtful, and committed approach that would, as a matter of basic logic, be expected of anyone appropriately planning for this type of fundamental and serious surgical process. Rather, she has behaved in a manner that is indecisive, unstable, and self-defeating, and has been all but impossible to engage in meaningful planning on this or any other vital issue."

With respect to the recommendations of the medical professionals submitted by petitioner indicating that she was a suitable candidate for sex reassignment surgery, Pratt stated that none of the recommendations "indicate that [petitioner] has either knowledge of the costs, procedures, and complications of various surgical approaches to the surgery ..., or that she has given any thought or showed any awareness of different competent surgeons."

Petitioner moved for summary judgment directing ACS to arrange for her sex reassignment surgery, and ACS cross-moved for summary judgment declaring that it had no such obligation. Family Court granted the motion, denied the cross motion and directed ACS to make arrangements for petitioner to have the surgery. This appeal by ACS ensued.

Contrary to petitioner's contention, ACS is not barred from pressing its claim that, pursuant to Medicaid law, it is precluded from paying for sex reassignment surgery. ACS did raise this argument before Family Court in opposition to petitioner's initial motion and before this Court on ACS' appeal from the order deciding that motion. In reversing that order and remanding for further proceedings, however, we did not expressly or implicitly pass on the merits of that argument. Rather, we concluded that ACS "should have provided the Family Court with a clear statement of the reasons for denial of this surgery, and, consequently, we remand[ed] for that purpose" (32 AD3d at 326 [citation omitted]). Thus, the law of the case doctrine does not bar ACS from asserting on this appeal that it is precluded under Medicaid law from paying for sex reassignment surgery (see Metropolitan Package Store Assn. v Koch, 89 AD2d 317, 321-322 [1982] [law of the case doctrine "is not inflexible, and applies only to issues decided, directly or by implication, at an earlier stage of the action" (citation omitted)], appeal dismissed 58 NY2d 1112 [1983], appeal dismissed 464 US 802 [1983]; see also People v Evans, 94 NY2d 499, 503-504 [2000]).

With respect to the substance of that assertion, petitioner and ACS agree that ACS was obligated to provide petitioner with medical and surgical care under Social Services Law § 398 (6) (c). That provision requires local governmental officials responsible for certain classes of children to: "Provide necessary medical or surgical care in a suitable hospital, sanatorium, preventorium or other institution or in his [or her] own home for any child needing such care and pay for such care from public funds, if necessary. However, in the case of a child or minor who is eligible to receive care as medical assistance for needy persons pursuant to title eleven of article five of this chapter, such care shall be provided pursuant to the provisions of that title." (Id.)

In essence, ACS asserts that Social Services Law § 398 (6) (c) creates two tiers of health care for children under ACS' care— one tier for children who, like petitioner, are entitled to receive medical assistance for needy persons pursuant to title 11 of article 5 of the Social Services Law, the state Medicaid law, and another tier for all other...