Fixing Medicaid to "fix society": extending Medicaid coverage of gender-affirming healthcare to transgender youth.

Author:Parr, Henry
Position:II. Conflicts Doctrine and Law that May Arise From Medicaid Age Restrictions on Gender-Affirming Health care B. Age Restrictions on the Access to Gender-Affirming Healthcare May be Inconsistent with Principles of Informed Consent 2. Age-Based Restrictions May Conflict with Exceptions to the Doctrine of Informed Consent through Conclusion, with foot
  1. Age-Based Restrictions May Conflict with Exceptions to the Doctrine of Informed Consent

    While the doctrine of informed consent may support age-based restrictions on gender-affirming treatment, the statutory definitions of informed consent suggest that a blanket age-restriction is inappropriate. Although most states set the age of informed consent at eighteen, statutory definitions also generally focus on the capacity of the individual to make decisions about his or her health. (201) For instance, in New York, informed consent "means that the patient has to demonstrate the intellect to understand what is being proposed, to realize and assess the risks and benefits, and to voluntarily consent to or refuse the proposed major medical treatment." (202) On this basis, some states, such as Oregon, have set the age of consent below the age of eighteen, which authorizes adolescents to give informed consent when they are fifteen. (203) Thus, the age-based restriction of section 505.2 may conflict with the doctrine of informed consent as it focuses solely on the age of the individual and not his or her actual ability to make informed decisions.

    Research shows that by the time they reach sixteen, adolescents have the same cognitive capacity as adults to make decisions about medical treatment. (204) Adolescents who are sixteen have essentially the same cognitive abilities as adults to process and understand information and to appreciate the nature of a given situation. (205) The risk-taking behavior and "impetuous and ill-considered actions" of adolescents that the Court noted in Roper is generally not attributed to limited cognitive development but rather to emotionally charged or high-pressure situations that require adolescents to control impulses. (206) Most scholars agree that health decisions are devoid of the same stressors that compromise adolescent decision-making in other contexts. (207) To this point, three studies examining the decision making process of adolescents who are deciding whether to undergo an abortion found that adolescents conceptualized and considered treatment in the same manner as adults. (208)

    Most states have also carved out exceptions in their informed consent statutes, recognizing that certain adolescents may be able to provide informed consent despite being minors. (209) These exceptions may be divided into two categories: statutes that permit minors to give informed consent when they hold a certain status and statutes that allow minors to give informed consent when they are seeking a particular kind of procedure. (210)

    The status-based exceptions allow a minor to give informed consent when they are emancipated, married, have children, are in the military, or are deemed to be a "mature minor" by a court. (211) For instance, New York provides that minors who are married or have given birth may give consent for their own health and the health of their children. (212) The mature minor exception requires a court to assess whether a minor's decision-making capacity is that of an adult. (213)

    Courts have recognized the validity of a mature minor adjudication in the context of a right to refuse treatment. (214) In In re E.G., the Supreme Court of Illinois held that a seventeen-year-old girl with leukemia, who would not consent to a medically necessary blood transfusion because she was a Jehovah's Witness, had a right to refuse such treatment. (215) The court noted that while the age of consent was eighteen in Illinois, a minor is entitled to exercise a right to refuse treatment if there is clear and convincing evidence she is "mature enough to exercise the judgment of an adult." (216) The court also noted that the state's status and procedure-based exceptions to informed consent indicate that the legislature did not intend for a bright line age-based barrier to informed consent. (217)

    The procedure-based exceptions allow minors to give informed consent for certain procedures. (218) Following the Supreme Court's ruling in Carey v. International Population Services, (219) a number of states permit minors to give informed consent to obtain contraceptives or abortions without parental consent. (220) New York also allows minors to give informed consent for procedures that are not constitutionally protected, such as prenatal care, substance abuse treatment, and certain outpatient mental health services. (221)

    Thus, statutory definitions and exceptions to the doctrine of informed consent may provide support for removing the age-based restrictions in section 505.2. Definitions of informed consent generally focus on the decision-making capacity of individuals. (222) Despite being more prone to emotionally charged situations, adolescents have been shown to have the same decision-making capacity as adults and may exercise the same or similar judgment as adults when making healthcare related decisions. (223) Furthermore, states appear to have recognized that, in some health contexts, adolescents have the capacity to give informed consent. (224) Although the doctrine of informed consent presumes minors are incapable of making informed decisions, the definitions and exceptions to the doctrine also suggest that adolescents may have the capacity to make informed health decisions such as undergoing gender-affirming treatment.

    1. Age Restrictions May Give Rise to Legal Claims

    As noted above, the medical community's current view of treating GD and the doctrine of informed consent provides rationales that support and oppose the age-based restrictions for Medicaid coverage of gender-affirming treatment. (225) Additionally, there may be conflicting views as to whether age-based restrictions on Medicaid coverage for gender-affirming treatment will give rise to valid legal claims or the withholding of federal Medicaid funds, which would justify removing the restrictions. State programs, such as New York's, that deny coverage of gender-affirming treatment on the basis of age may be susceptible to legal claims brought by individuals under the Patient Protection and Affordable Care Act (ACA), which prohibits programs from discriminating on the basis of gender identity. (226) Likewise, states that restrict Medicaid coverage of gender-affirming treatment on the basis of age may be subject to HHS enforcement actions on the grounds that such restrictions violate 42 U.S.C. [section][section] 1396 et seq., otherwise known as the Medicaid Act. (227)

  2. Age-Based Restrictions Could Give Rise to Claims Under the Affordable Care Act

    A Medicaid regulation that imposes age restrictions on hormone therapy and gender affirming surgery could give rise to legal claims brought under the Affordable Care Act. Since its passage in 2010, the ACA has been described as the biggest overhaul of the U.S. healthcare system since the authorization of Medicaid and Medicare in 1965. (228) The Act implemented a number of reforms that were intended to improve the quality of and access to healthcare, while also lowering the costs of healthcare. (229) Pursuant to its goal of increasing access to affordable healthcare, the ACA prohibits insurance providers and state Medicaid programs from discriminating on the basis of race, sex, age, or disability. (230)

    It is unclear whether challenges to the age-based restrictions in section 505.2 would succeed. First, while HHS has implied that disparate coverage for transgender individuals amounts to sex discrimination, (231) federal courts have yet to recognize transgender identity as a protected status. (232)

    The ACA's prohibition on sex discrimination draws its authority from Title IX of the Education Amendments of 1972. (233) Title IX prohibits programs that receive federal financial assistance from denying benefits on the basis of sex. (234) Although the ACA does not explicitly prohibit discrimination on the basis of gender identity, the Director of the FIHS Office for Civil Rights, the body that enforces the anti-discrimination provisions of the ACA, issued a letter to trans-rights advocates clarifying HHS's view that the ACA anti-discrimination provision extends to discrimination on the basis of ender identity and sex stereotypes. (235) Moreover, HHS has also proposed using its rule to implement the anti-discrimination provision of the ACA, which defines sex stereotypes as including "expectations that gender can only be constructed within two distinct opposite and disconnected forms (masculinity and femininity), and that gender cannot be constructed outside of this gender construct (individuals who identify as neither, both, or a combination of male and female)." (236) The proposed regulation contains provisions that specifically address discrimination against transgender individuals in health insurance and Medicaid coverage. (237) Under these provisions, an explicit, categorical exclusion of coverage for all health services related to gender affirmation would be unlawful sex discrimination. (238) Likewise, the proposed rule elaborates that limiting coverage or denying coverage of a specific claim on the basis of gender identity might also be prohibited under the ACA. (239) Individuals might thus seek to bring claims against the state on these grounds.

    Individual Medicaid recipients would also have a private cause of action to challenge a state's Medicaid program under Title IX. (240) The ACA expressly adopts the enforcement mechanisms of Title IX to prohibit a denial of benefits on the basis of sex, (241) and the United States Supreme Court has read an implied right of action into Title IX. (242) In Cannon v. University of Chicago, the Court held that while it is better for Congress to specify when a statute provides a right of action, its failure to do so is not dispositive. (243) Examining Title IX, the Court used a four-factor test to find that the statute was intended to include a private right of action. (244) Additionally, the Court noted that Title IX was modeled on Title VI of the...

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