Left: New York Attorney General Letitia James speaks during a press conference regarding then former US President Donald Trump and his family's financial fraud case on September 21, 2022 in New York (photo by YUKI IWAMURA/AFP via Getty Images). Right: Donald Trump speaks at a 'Save America' rally on October 22, 2022 in Robstown, Texas (photo by Brandon Bell/Getty Images).
The Trump administration is unlawfully and "baselessly" trying to keep transgender youth from receiving "medically necessary" health care, the plaintiffs in a federal lawsuit filed this week claim.
Earlier this month and "without warning," Department of Health and Human Services (HHS) Secretary Robert F. Kennedy, Jr. issued a declaration that gender-affirming care for children and adolescents is "neither safe nor effective," according to the litigation.
The Kennedy declaration goes on to warn health care providers that they will face exclusion from Medicare and Medicaid programs if they provide gender-affirming care to any children or adolescents.
Now, in a 41-page lawsuit filed in Oregon, several states say the government is acting without authority and in violation of federal law.
At a basic level, the plaintiffs say Kennedy's declaration simply does not contain the legal heft necessary to do what it claims to do.
"The Secretary has no legal authority to substantively alter the standards of care and effectively ban, by fiat, an entire category of healthcare," the lawsuit reads. "Nor does the Secretary have authority to threaten providers' participation in federal programs, including reimbursement by Medicare and Medicaid, by fiat."
The complaint is premised on multiple violations of the Administrative Procedure Act (APA), the federal statute governing agency actions.
To that end, the plaintiffs say the newly proposed rules – two of which accompanied the declaration – were issued too fast, without proper procedure, and in a manner known as "arbitrary and capricious," an APA-sourced term of art which refers to agency actions that go too far while simultaneously eschewing formal, mandatory processes.
"The Kennedy Declaration is procedurally defective," the lawsuit continues – touching on the APA standard for notice-and-comment rulemaking. "At minimum, Secretary Kennedy and HHS cannot circumvent statutorily mandated notice and comment requirements by changing substantive legal standards by executive fiat."
To hear the plaintiffs tell it, Kennedy's declaration "was issued with apparent immediate effect" despite the APA requiring notice published in the Federal Register with at least 30-60 days for public comment.
"The Kennedy Declaration offers no attempt to justify legislative rulemaking outside statutorily mandated notice and comment procedures," the lawsuit goes on. "Because the Kennedy Declaration did not follow these required procedures…it is procedurally invalid."
The heart of the matter, the plaintiffs say, is medical care for children.
"At the core of this so-called declaration are real people: young people who need care, parents trying to support their children, and doctors who are simply following the best medical evidence available," New York Attorney General Letitia James said in a press release announcing the litigation. "Secretary Kennedy cannot unilaterally change medical standards by posting a document online, and no one should lose access to medically necessary health care because their federal government tried to interfere in decisions that belong in doctors' offices."
To that end, the plaintiffs say the proposed changes would needlessly endanger access to programs like the Children's Health Insurance Program (CHIP), which provides health coverage for low-income children and pregnant women.
From the lawsuit, at length:
The Kennedy Declaration also directly impairs the Plaintiff States' administration of state Medicaid and CHIP programs under the very terms agreed and guaranteed by HHS. Each Plaintiff State has adopted a state Medicaid plan that provides coverage for gender-affirming care. Each of these Plans has been approved by the Centers for Medicare and Medicaid Services, and each Plaintiff State has sought, and received, reimbursement for medically necessary gender-affirming care that the Kennedy Declaration now seeks to prohibit by excluding providers of that care. The Kennedy Declaration thus unilaterally and retroactively discards the state plans without proper procedure, harming the Plaintiff States.
And this new arrangement runs afoul of multiple laws – including the Medicare and Medicaid statutes themselves, the plaintiffs say.
"The Kennedy Declaration directly harms Plaintiff States' abilities to administer approved state Medicaid plans in accordance with state laws that protect and guarantee medically necessary gender-affirming care," the lawsuit goes on. "The Declaration further harms the Plaintiff States' administration of state Medicaid plans by purporting to announce a rule of decision that HHS will use as a basis to exclude from Medicaid a large swath of clinicians—including pediatricians, family medicine doctors, and endocrinologists—without process or authority."
New York is joined by 18 other states and Washington, D.C. as plaintiffs in the litigation which asks a federal court to "hold unlawful" and "set aside" the disputed Kennedy declaration.
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