Flack, Cody et al v. Wisconsin Department of Health Services et al

Filing 239

PROPOSED FINAL ORDER for Equitable Relief. The parties may have seven days to submit any edits or objections they have to this proposed order. The court also GRANTS plaintiffs' consent motion for leave to file an amended proposed order. Signed by District Judge William M. Conley on 10/10/2019. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
CODY FLACK, et al.,
Individually and on behalf of all others similarly situated,
Plaintiffs,

ORDER

v.
18-cv-309-wmc
WISCONSIN DEPARTMENT OF HEALTH
SERVICES, et al.,
Defendants.
On October 9, 2019, the court heard oral argument on the parties’ proposals for
final equitable relief in this case. Consistent with that hearing, the court has drafted the
following order. The parties may have seven days to submit any edits or objections they
have to this proposed order.
The court also GRANTS plaintiffs’ consent motion for leave to file an amended
proposed order. (Dkt. #237.)

PROPOSED ORDER
IT IS ORDERED that:
1. For the reasons stated in the court’s August 16, 2019, Opinion and Order (dkt.
#217), Wis. Admin. Code §§ DHS 107.03(23)–(24), 107.10(4)(p) (“the
Challenged Exclusion”), are hereby declared null and void under: Section
1577 of the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116;
the Medicaid Act’s availability requirement, 42 U.S.C. § 1396a(a)(10)(A); the
Medicaid Act’s comparability requirement, 42 U.S.C. § 1396a(a)(10)(B); and
the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution.
2. Defendants are also permanently enjoined from enforcing the Challenged
Exclusion.
3. Within 90 days of this order, defendants shall:

a. issue a ForwardHealth Update that includes a notice of this order
permanently enjoining enforcement of the Challenged Exclusion and
explains that Medicaid-enrolled patients, clients, or constituents may be
eligible to request coverage for gender-confirming services that were
previously excluded from coverage under the Challenged Exclusion;
b. provide notice to the social service providers on Appendix A of plaintiffs’
amended proposed order (Pls.’ Am. Proposed Order, App. A (dkt. #237-1)
12) that this court has permanently enjoined enforcement of the
Challenged Exclusion and that Medicaid-enrolled patients, clients, or
constituents may be eligible to request coverage for gender-confirming
services that were previously excluded from coverage under the Challenged
Exclusion;
c. provide notice to all Wisconsin Medicaid Health Maintenance
Organizations (“the HMOs”) that this court has permanently enjoined
enforcement of the Challenged Exclusion and that individual authorization
requests for gender-confirming services are subject to the Wisconsin
Department of Health Services’ standard review, prior authorization
procedures, and determinations for medical necessity, and encourage the
HMOs to consider notifying, if appropriate, individuals who were
previously denied coverage for services because of the Challenged Exclusion
that they may be eligible for coverage of a service or services previously
found to be excluded; and
d. provide notices, if appropriate, to fee-for-service beneficiaries previously
denied coverage because of the Challenged Exclusion that they may be
eligible for coverage of a service or services previously found to be excluded.
4. Within 180 days of this order, defendants shall also publish a coverage policy
regarding gender-confirming treatments previously excluded under the
Challenged Exclusion.
Dated this 10th day of October, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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