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2019-12-30 Support historic legal challenge to routine infant circumcision paid by Medicaid

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  • #31
    A very brief update from March 2:

    Our hearing has been rescheduled for April 1.
    Here's the link again:


    • #32
      The hearing yesterday took place, as scheduled. Today's update on gofundme:

      Our hearing at the Appeals Court happened yesterday. We are satisfied with our oral arguments. We will post more on this soon. Thanks for your support!


      • #33
        Here's a much more detailed update from April 11, describing the basis for the lawsuit, as well as a brief summary of the court proceedings thus far:

        This is an update about the status of the case, which is now on appeal from a ruling in our favor by the Superior Court.

        The Plaintiffs are 24 taxpayers suing under a taxpayer statute that gives them the right to challenge any unlawful expenditure by a state agency, here MassHealth. The Complaint alleges that physicians and hospitals are committing massive Medicaid fraud, possibly dating back to 1965, by using false diagnoses and by falsely certifying that it is medically necessary to circumcise boys at birth and healthy boys later in childhood. Under federal and state Medicaid law, Medicaid can only be used to pay for surgery that patients need. It cannot be used to pay for unnecessary surgery. The Complaint also alleges that the state has failed to comply with its legal duty to require proof of medical necessity for every circumcision, and to establish a review board to review payments for medical necessity. We argue that the state is enabling fraud by physicians and hospitals and that it is therefore an accessory to the fraud.

        MassHealth moved to dismiss the lawsuit. Our attorneys Peter Adler and Andrew DeLaney opposed the motion, and medical experts filed an affidavit and friends of the court briefs showing that circumcision is unnecessary and harmful.

        The Superior Court judge ruled that we have the right to proceed with our claims that MassHealth is violating state law. The court reasoned that the state statute gives taxpayers the right to challenge any unlawful expenditure by the state, and that our factual allegations must be accepted as true. He ruled, however, that we cannot proceed with our claims under federal law, based on a Supreme Court decision in a rating setting case. That does not matter to us as we can win the lawsuit and stop MassHealth from funding circumcisions applying state law only. Reasoning that the case is novel and important, the judge referred the case on his own to the Massachusetts Appeals Court.

        Our attorneys filed lengthy principal and reply briefs on appeal, arguing that the Superior Court judge ruled correctly that we have the right to proceed with our lawsuit under state law, but that the lower court erred in ruling that our claims under federal law are barred.

        On April 1, 2022, Attorneys Adler and DeLaney argued orally at a hearing before a three justice panel of the Massachusetts Appeals Court. Our legal team handled the panel’s tough and sometimes hostile approach admirably. They largely centered on whether taxpayers should be able to bring a lawsuit of this kind against a government agency. One justice seemed concerned about an avalanche of taxpayer lawsuits challenging medical procedures. For example, they asked whether lawsuits to stop Medicaid funding of colonoscopies or mastectomies should be allowed (subtly implying that this lawsuit is absurd and frivolous).

        Attorney Delaney had only five minutes to speak and he made the most of them. He responded that unlike circumcisions, colonoscopies and mastectomies are not performed for religious or cultural reasons. He suggested that the Court be bold (implying that it should not try to escape the clear wording of the statute for policy reasons – this is a question of law for MassHealth and the Appeals Court, not one of policy).

        We now must wait for the Appeals Court to issue its ruling, which it has up to 120 days to do, though hopefully it will rule earlier, and it might any day.

        A victory would mean that the case is sent back to the trial court to proceed with an evidentiary or factual hearing on whether circumcision is indeed necessary and properly covered under Massachusetts Medicaid. Should the Court rule favorably for us, it would truly be a landmark ruling, the first in the nation, and it would lay the framework for similar lawsuits nationwide (at least in states that also have taxpayer statutes). The importance of the forthcoming ruling cannot be overstated!

        As always, we are extremely grateful for your enthusiasm and support!


        • #34
          While we're waiting for a ruling, here's an update from April 15 with a link to the court docket, with the case history, full text of the briefs filed, and a 36 minute recording of the oral arguments:

          Here is a link for the Massachusetts Appellate Courts about our case, It includes links to pdf files of our Appeals Court briefs and replies by the State.


          • #35
            More court records, if anyone's interested (posted April 22):

            COURT RECORDS
            For those interested in the Superior Judicial Court records, from the initial filing to the referral to the Appeals Court, please see the link below.


            If the link goes to a page that says, "Click here to search public records," enter The Superior Court, Suffolk County Civil, and case number 2084CV01604.


            • #36
              Keeping this thread going, because they're keeping the case going...

              The appeals court dismissed the case last week. Goldman, along with lawyers Peter Adler and Andrew DeLaney, are certain that they have grounds to challenge this ruling, and plan to submit a request for review to the MA Supreme Judicial Court. Here's a detailed update:


              Note that they've raised the fundraising goal to cover more legal expenses.