Rush v. Parham, 77-2743

• Citation: 625 F.2d 1150
• Decision Date: 15 September 1980
• Docket Number: No. 77-2743,77-2743
• Parties: Carolyn RUSH (Pseudonym), Plaintiff-Appellee, v. T. M. "Jim" PARHAM, etc., et al., Defendants, David Poythress, Commissioner, Georgia Department of Medical Assistance, and Patricia Roberts Harris, Secretary, Department of Health and Human Services, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1150

625 F.2d 1150

Carolyn RUSH (Pseudonym), Plaintiff-Appellee, v. T. M. "Jim" PARHAM, etc., et al., Defendants, David Poythress, Commissioner, Georgia Department of Medical

Assistance, and Patricia Roberts Harris,

Secretary, Department of Health and

Human Services, Defendants-Appellants.

No. 77-2743.

United States Court of Appeals, Fifth Circuit.

Sept. 15, 1980.

Michael J. Bowers, Senior Asst. Atty. Gen., Jefferson James Davis, Staff Asst. Atty. Gen., Atlanta, Ga., Stephanie B. Manis, Asst. Atty. Gen., for Poythress.

William L. Harper, U. S. Atty., Stephen P. Georgeson, Asst. Regional Atty., Dept. of H.H.S., Atlanta, Ga., Linda M. Cole, Eloise E. Davies, Alice Daniel, Asst. Attys. Gen., Civil Div., Appellate Section, Dept. of Justice, Washington, D. C., for Harris.

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

Sara Rosenbaum, National Health Law Program, Inc., Santa Monica, Cal., for amicus curiae Grey Panthers.

Appeals from the United States District Court for the Northern District of Georgia.

Before BROWN, TJOFLAT and GARZA, Circuit Judges.

TJOFLAT, Circuit Judge:

Carolyn Rush sued various federal and Georgia officials to secure Medicaid funding for transsexual surgery. The district court, on Rush's motion for summary judgment, ordered state defendants to pay for the surgery, holding that a state Medicaid program cannot, consistent with 42 U.S.C. § 1396 (1976), categorically deny funding for necessary medical services. The district court, also ordered federal defendants to disapprove that portion of Georgia's Medicaid plan that "irrebuttably den(ies) Medicaid coverage for transsexual surgery." Rush v. Putnam, 440 F.Supp. 383 (N.D. Ga. 1977).

We disagree with the district court's disposition of the case, and hold that state defendants should have been permitted to show at trial that (1) the Georgia Department of Medical Assistance ¹ has a ban against making payment for experimental treatment because such treatment is not medically necessary, and that transsexual surgery is experimental; or (2) the Department of Medical Assistance provides for transsexual surgery in an appropriate case, but properly determined that it was medically inappropriate in plaintiff's case. As to the federal defendants, we find that the district court should have dismissed for lack of jurisdiction. Accordingly, we reverse and remand.

I Background

The history to this case begins in 1974, when Rush, an anatomical male who had been diagnosed as a transsexual, sought approval from the Department of Medical Assistance for Medicaid funding of transsexual surgery, which had been the medical recommendation of her ² physician. Since Rush was a recipient of Supplemental Security Assistance, she qualified for benefits under Georgia's Medicaid program. Payment was at first approved, but before the operation could be scheduled, the approval was rescinded. According to state defendants, the reason for the retraction was that transsexual surgery was experimental, and, in any event, inappropriate treatment for Rush.

Rush requested reconsideration of the denial, and in support of the necessity of surgery, submitted affidavits from two medical specialists in the treatment of transsexuals. The thrust of each was that plaintiff was a "true transsexual," i. e., an anatomical male with a female gender identity, and that the only effective means of treatment was surgical change of Rush's anatomical sex.

The Department of Medical Assistance, however, again rejected Rush's claim for essentially the same reasons as before. The only significant difference between the two decisions was that since the original rejection, the Department had amended the Medicaid plan explicitly to exclude "experimental surgery, e. g., transsexual surgery," see Record at 458, from coverage, and this was noted as a specific ground for the denial.

Rush brought suit in district court, naming as defendants state officials responsible for administering Georgia's Medicaid plan, and federal officials responsible for administering Medicaid nationally and in the region including Georgia. The gist of the complaint was that Georgia's refusal to pay for plaintiff's transsexual surgery violates a federal statutory requirement that a state Medicaid program pay for all medically necessary services, ³ and violates the equal protection clause of the fourteenth amendment by discriminating between transsexuals and other Medicaid participants requiring surgery. Rush's requested relief was that the court (1) declare Georgia's ban against paying for transsexual surgery illegal and enjoin state defendants from enforcing the ban; (2) order state defendants to pay for plaintiff's surgery; and (3) issue a writ of mandamus requiring federal defendants to withdraw approval of Georgia's current Medicaid plan. ⁴

After limited discovery, Rush moved for summary judgment, arguing that there were only two issues before the court, neither of which involved a disputed issue of material fact. The first issue was whether a state Medicaid program could categorically deny funding of a medically necessary service. According to Rush, the factual question whether transsexual surgery was medically necessary had been foreclosed by her submission of affidavits by two physicians stating that transsexual surgery was medically necessary (although defendants had submitted counter affidavits stating that transsexual surgery was ineffective and dangerous). The second issue was whether the Department of Medical Assistance abused its discretion in finding that the surgery was not indicated for Rush.

Defendants opposed the motion for summary judgment, arguing that a state Medicaid plan can exclude medically necessary treatment as long as the exclusion is reasonable. But even if the court were to agree with Rush that any medically necessary service must be paid for, the factual issue of the medical necessity of transsexual surgery could not be disposed of on Rush's motion.

The district court granted the motion, holding (1) that Georgia's Medicaid program must pay for all medically necessary services of Medicaid recipients; and (2) that the determination of plaintiff's physician that transsexual surgery was medically necessary "could suffer no interference from the state." The only modification to Rush's proposed relief was that the federal defendants were ordered to disapprove only those portions of the plan that denied funding for transsexual surgery. This appeal is taken from the summary judgment entered pursuant to the district court's order.

II Federal Defendants

Rush's complaint against the federal defendants seeks relief under 28 U.S.C. § 1361 (1976), which vests district courts with mandamus jurisdiction over officers and employees of the United States. Since Rush alleges no plausible basis for jurisdiction (and indeed, requests no relief) of federal defendants other than mandamus, "(t)he determinative issue . . . is whether under general principles of law mandamus provides an appropriate means for obtaining the relief prayed for in this case." Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969), cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970). If it does not, we must dismiss the action against the federal defendants for lack of jurisdiction.

Mandamus relief under section 1361 is available only when (1) "defendant official or agency owes a specific duty to the plaintiff," Kirkland Masonry, Inc. v. Commissioner, 614 F.2d 532, 534 (5th Cir. 1980); and (2) plaintiff has no other adequate remedy available to him. Carter v. Seamans, supra. Putting aside the question whether any federal defendant owes a specific duty to this plaintiff, ⁵ we think it clear that mandamus is unavailable here because Rush's remedy against Georgia state defendants is adequate to provide her every significant aspect of the relief requested. Ramirez v. Weinberger, 363 F.Supp. 105 (N.D.Ill.1973), aff'd 415 U.S. 970, 94 S.Ct. 1553, 39 L.Ed.2d 867 (1974) (mandamus to compel Secretary of HEW to withhold funding from allegedly unconstitutional state AFDC program unavailable since action against state defendants to correct program is adequate remedy). Thus, this action cannot be premised on section 1361, and, finding no other jurisdictional basis for the relief requested, we dismiss the action against the federal defendants.

III State Defendants

The district court held that under the federal Medicaid statute, a state program is required to pay for any services a physician determines to be medically necessary for the patient. ⁶ Since Rush's physician prescribed transsexual surgery, it apparently followed that Georgia's Medicaid program was obligated to pay for the surgery, and the district court so ordered. We disagree with the district court, and hold instead that a state may adopt a definition of medical necessity that places reasonable limits on a physician's discretion. One such limitation is the one Georgia contends it used in denying the surgery: a ban against reimbursement for experimental forms of treatment, ⁷ i. e., treatment not generally recognized as effective by the medical profession. ⁸

We also hold that a state Medicaid agency can review the medical necessity of treatment prescribed by a doctor on a case-by-case basis. Our conclusions are more fully discussed below.

A.

The district court's holding that a state must pay for all treatment found by a doctor to be medically necessary comprises two separate conclusions: first, that a state Medicaid program must provide all medically necessary services; and second, that the private physician is the sole arbiter of medical necessity. We find it unnecessary to determine the correctness of the first conclusion, for the grounds on which the state seeks to justify its refusal to pay for the surgery, i. e., that it was experimental and not indicated for this plaintiff, are fully consonant with a requirement that all...