No announcement yet.

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

  • Filter
  • Time
  • Show
Clear All
new posts

  • #31
    A very brief update from March 2:

    Our hearing has been rescheduled for April 1.
    Here's the link again:
    We estimate that there are about 10,000 Medicaid circumcisions… Ronald Goldman, Ph.D. needs your support for Historic Legal Challenge to Medicaid Circumcision


    • #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.
          We estimate that there are about 10,000 Medicaid circumcisions… Ronald Goldman, Ph.D. needs your support for Historic Legal Challenge to Medicaid Circumcision


          • #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:

              We estimate that there are about 10,000 Medicaid circumcisions… Ronald Goldman, Ph.D. needs your support for Historic Legal Challenge to Medicaid Circumcision

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


              • #37
                Just over a week ago, on August 12, an appeal was submitted to the Massachusetts Supreme Judicial Court. The defendant, MassHealth, will file its response, after which, the court will decide whether or not to hear the case.

                Here are two updates that Ronald Goldman has posted on Gofundme, including a link to records from the Superior and Appeals Court, and Goldman's summary of the entire case thus far:

                • August 16, 2022 by Ronald Goldman, Ph.D., Organizer
                Here is our link to legal documents for the Superior Court and Appeals Court.
                As previously stated, we are waiting for the response from the Supreme Judicial Court.
                • August 15, 2022 by Ronald Goldman, Ph.D., Organizer
                BACKGROUND: As you may know, the Complaint alleges that: (1) taxpayers have the right to challenge the state whenever it expends money in violation of any law; (2) it is unlawful for any state to use Medicaid to pay for unnecessary surgery without reviewing the payments and requiring proof of medical necessity; and (3) non-therapeutic elective circumcision is not medically necessary. Plaintiffs claim the right under the taxpayer statute to a declaration that MassHealth is expending money unlawfully; and the right to enjoin MassHealth from using Medicaid to pay for circumcision, except in rare instances where the physician can show that it is medically necessary.

                MassHealth filed a Motion to Dismiss the lawsuit. We had a resounding victory at the Superior Court level. The judge agreed that the taxpayer statute allows taxpayers to challenge any expenditure in violation of any clear law. He stated that at the Motion to Dismiss stage, courts must accept as true our allegation that most circumcisions are not medically necessary, but rather are performed for religious and cultural reasons unrelated to medicine. The judge ruled that where MassHealth has passed regulations requiring medical necessity, it must comply with them, and that Plaintiffs have made a plausible allegation that the state is not doing so.

                After calling the case a novel one that it is in the public interest to resolve correctly, the Superior Court judge then asked the Appeals Court to review his ruling. At oral argument, the three judges on the Appeals Court panel seemed skeptical, and it ruled against us and dismissed the lawsuit. In the ruling, the Appeals Courts appears to have accepted as true that circumcision is performed for medical reasons, and that it is within the discretion of physicians to bill for and MassHealth to cover. The Superior Court rejected this reasoning in its ruling:

                "[T[he Plaintiffs in the instant case are not calling upon the Court to assess whether MassHealth has properly exercised its discretion in fulfilling a statutory duty. Instead, the Court in this case is asked to determine whether or not MassHealth is exercising its discretion at all, where the agency’s own regulation unambiguously requires it to do so. … The Court need only resolve whether MassHealth is taking steps to ensure that the neonatal male circumcisions for which it provides Medicaid reimbursement coverage are medically necessary. (Emphasis added.) [MassHealth is not doing anything, not even inquiring into whether the circumcisions are medically necessary."

                UPDATE: I am pleased to report that on Friday, August 12, our lawyers filed with the Supreme Judicial Court a Request for Further Appellate Review. As mentioned before, the SJC is not required to hear our case, and in fact it only hears a small percentage of the cases send to it for further appellate review. We argued that this is a novel and landmark case with state and national implications, where the Superior Court and the Appeals Court reached opposite conclusions. It is important that the SJC review the Appeals Court decision and determine that the taxpayer statute means what is says, namely that taxpayers have the right to challenge any unlawful expenditure, and determine that it is unlawful for the state (and by implication any state) to use Medicaid to pay for circumcision.

                I also mention that we used $1,500 of your donations to retain a third attorney (in addition to Attorneys Adler and DeLaney) as a legal consultant. He assisted in preparing the request to the Supreme Judicial Court.

                The Defendant MassHealth has 14 days to file a responsive pleading. Then the Supreme Judicial Court judges meet once per month to decide which cases to hear, and we certainly hope that it decides that our case warrants review.

                As always, thank you for your contributions.
                We estimate that there are about 10,000 Medicaid circumcisions… Ronald Goldman, Ph.D. needs your support for Historic Legal Challenge to Medicaid Circumcision


                • #38
                  The latest update, dated September 8: they're expecting a response next month from the MA Supreme Judicial Court, on their request for a hearing. Massachusetts Medicaid has not submitted anything to the court in response to the request by Goldman, et al, and their deadline to do so has passed.

                  Massachusetts Medicaid, MassHealth, has not made a submission to the Supreme Judicial Court in response to our request for a hearing. The deadline for their submission has passed. This may improve our chance that the Court will allow us a hearing. We expect that the Court will respond to our request for a hearing in October.​
                  We estimate that there are about 10,000 Medicaid circumcisions… Ronald Goldman, Ph.D. needs your support for Historic Legal Challenge to Medicaid Circumcision


                  • #39
                    The MA Supreme Judicial Court has declined to hear the case. It's unfortunate news, but as with other Supreme Courts, they're probably unable to hear every case submitted to them. Here's the update from Oct 31:

                    We have been notified by the Massachusetts Supreme Judicial Court that they decline to hear our case, an option they have for all cases submitted to them. This was the last possibility for us to try to overturn the previous court decision against us. Of course, we are very disappointed with this result that ends our effort. We expect that you feel similarly and are grateful for all your support for our work. We will explore other possibilities perhaps in other states. Best wishes to all of you!!​
                    A few days later, on Nov 4, Ronald Goldman and attorney Peter Adler posted the following:

                    Our Government and Courts Condone Medicaid Fraud
                    By Peter W. Adler and Ronald Goldman

                    Physicians and their hospitals in the United States have been committing Medicaid fraud, likely dating back to 1965 when the Medicaid program began, by falsely certifying that it is medically necessary to circumcise healthy boys, and by using false diagnoses such as “newborn boy,” “routine circumcision,” and “phimosis” or a tight foreskin, which is normal at birth. Medicaid pays for about one-third of the more than one million circumcisions per year performed in the United States, and for about 10,000 circumcisions per year in the Commonwealth, so the size of the fraud is massive.

                    Since 1982, 18 U.S. states stopped using Medicaid to pay for circumcisions at birth, when most are performed. This prevents Medicaid fraud; saves taxpayers’ hard earned dollars; frees up scarce health care resources for operations that people need; and spares boys and men from the many risks and harms of unnecessary genital surgery. Moreover, as a 2011 law review article in the Journal of Law and Medicine showed, it is
                    unlawful for states to use Medicaid to pay for unnecessary surgery.

                    Accordingly, in July of 2020, we sued the Commonwealth under a Massachusetts statute, General Laws Chapter 29, Section 63, that gives taxpayers the right to stop the state whenever it expends money unlawfully, as here. MassHealth moved to dismiss the case, but in March of 2021, Superior Court Judge Robert B. Gordon allowed it to proceed. He wrote that the plaintiffs’ allegations “do establish that MassHealth is expending taxpayer funds to cover a particular physician service without determining whether it was medically necessary in the manner required by its regulation.” Calling the case novel, important and a matter of public interest — indeed, it is a landmark case — Judge Gordon asked the Appeals Court to review his decision.

                    At oral argument, two of the three Appeals Court judges seemed skeptical from the outset. One expressed concern about a possible avalanche of lawsuits by taxpayers who personally dislike a given medical procedure. The Superior Court had rejected that argument, and rightly so, reasoning that the state would have brought those lawsuits upon itself by violating its own regulations, which prohibit payments for unnecessary surgery.

                    The Appeals Court overturned the Superior Court ruling and dismissed the lawsuit. It reasoned that taxpayers do not have the right to sue because it is within the discretion of Medicaid officials to determine whether a service is medically necessary or not. That argument fails because no discretion is needed to know that it is not medically necessary to operate on a healthy boy. The Appeals Court also relied on appeals to authority, including the circumcision statements of American medical associations, but no national medical association in the world recommends circumcision, and the approval of the federal Centers for Medicare and Medicaid Services. Such appeals to authority must fail as they cannot change the stubborn fact that it is not medically necessary to circumcise a healthy boy, or the law that payments for it are unlawful.

                    Accordingly, we asked the Supreme Judicial Court of the Commonwealth for further judicial review, but the Court denied our request on October 13. The court did not
                    give a reason for not hearing the case, but it is the norm not to.

                    As we see it, this outcome is a miscarriage of justice with many deleterious consequences. Physicians and hospitals are being allowed to get away with Medicaid fraud. The state is being allowed to escape its duty to stop Medicaid fraud, so the state is
                    enabling it. Taxpayers continue to be forced to pay for an operation that parents usually elect for cultural and cosmetic reasons having nothing to do with medicine. Scarce health
                    care resources are being wasted. With no disrespect intended, the Appeals Court seems to have ignored the plain wording of the taxpayer statute, and it has limited the right of taxpayers to challenge unlawful expenditures by the state.

                    In addition, as a California court ruled, it seems obvious that it is harmful to needlessly go under the knife. Indeed, circumcision is very bad for the health of every boy and man. It is irreversible; extremely painful; it risks more than 50 complications, some catastrophic, it can be fatal, and it can cause psychological harm; and it removes the most sensitive part of the penis, and it destroys how the penis functions. The argument that the procedure has medical benefits is spurious as it has little prospect of benefiting any boy or man, boys are not at risk of adult diseases, and any potential (not actual) benefit can be achieved easily without loss of the foreskin.

                    In most civilized countries, physicians and parents leave boys genitally intact. They men they become are doing just fine, and they rarely volunteer to circumcised, showing that boys would not choose to be circumcised either if given the choice and able
                    to make it. A European physician has called circumcision crazy, and one day we in the United States will as well. Unfortunately, that day is not today.
                    Peter W. Adler, a graduate of the University of Virginia School of Law, teaches law at the University of Massachusetts. Ronald Goldman, Ph. D., the lead plaintiff in the lawsuit, is Founder and Executive Director of the Circumcision Resource Center.
                    For your information, the lawsuit is based on the
                    following law review article: Peter W Adler, “Is it lawful to use Medicaid to pay for circumcision?,” Journal of Law and Medicine, 2011 Dec;19(2):335-53.​