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

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  • z726
    replied
    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.

    https://www.masscourts.org/eservices...mU9Q75slTIe72A

    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.

    Leave a comment:


  • z726
    replied
    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, https://www.ma-appellatecourts.org/docket/2021-P-0318. It includes links to pdf files of our Appeals Court briefs and replies by the State.
    https://www.gofundme.com/f/legal-cha...d-circumcision

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  • z726
    replied
    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!

    Leave a comment:


  • z726
    replied
    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!

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  • z726
    replied
    A very brief update from March 2:

    Our hearing has been rescheduled for April 1.
    Here's the link again:
    https://www.gofundme.com/f/legal-cha...d-circumcision

    Leave a comment:


  • z726
    replied
    From January 30:

    We have reached our fundraising goal! Thanks to all who have contributed. The need for additional fundraising will depend on how the legal process proceeds. For example, if there are additional appeals, document submissions, and hearings, we may need more funds. Our next steps are a hearing scheduled for March 17 and another hearing to follow it.

    Leave a comment:


  • z726
    replied
    Update from January 19, 2022:

    We have submitted to the Appeals Court our written response to the State's written defense of its position. We now wait for the Appeals Court to notify us of the date in March when we will have the Appeals Court hearing. Thanks for your support!

    Leave a comment:


  • z726
    replied
    We have another update, just a bit longer than the previous ones. Part of it is that they've increased their fundraising goal to cover more legal fees, but they also mention the next steps in the court process.

    From our Attorney:
    Hello. I am Peter Adler, Massachusetts counsel in this case, together with Andrew DeLaney appearing from New Jersey. We are writing to thank you very much for your donations and to update you about the status of the case.

    We do really appreciate your generous donations to this litigation, whether large or small. This is a landmark case where we are trying to end Medicaid funding of circumcisions in Massachusetts. That would be a huge win. We are hopeful that a victory in Massachusetts would lead to victories in other states that allow taxpayers suits like this one.

    Andrew and I are both billing our time at $150 per hour, but we are only billing for a fraction of our time. I have worked at least 500 hours on the case and Andrew has worked another 100 to 200 more. As a result, the hourly rate overall is very low.

    SUPERIOR COURT CASE

    We are really excited about the results so far. As Ron Goldman explained, MassHealth, the Massachusetts Medicaid agency, moved to dismiss the lawsuit. We filed a responsive brief; the state filed a reply; then we had oral argument before Judge Gordon in Suffolk Superior Court (via Zoom).

    Judge Gordon ruled that taxpayers in Massachusetts have the right to proceed in Superior Court on their claim that it is unlawful under Massachusetts law: to use Medicaid to pay for circumcision; to fail to require proof of medical necessity; and to fail to establish an institution review board to review those payment. He then referred the case to the Massachusetts Court of Appeals to review his decision.

    COURT OF APPEALS CASE

    We filed our appellate brief on June 30, which contained 50 pages of arguments, 128 pages including the addendum, and an appendix 198 pages long. The state filed its brief, which is more than 100 pages long, in response to ours on November 29; and we have until January 15 to file our reply to the state’s brief. Then the Court of Appeals will hear oral argument.

    We expect to need more than 60 hours to reply to the state’s brief, which is over 100 pages long including attachments, and for oral argument. We would therefore like to raise an addition $10,000 to cover our discounted legal fees. We will appreciate your additional donations.

    We are using our best efforts to move the case along as swiftly as possible. If we preserve the win in the Superior Court at the Court of Appeals, we will do some discovery, but there are only a few facts we need to prove. We would then move for summary judgment, arguing that there are no material facts in dispute and that we have the right to win the lawsuit.

    We hope this update is helpful to you. Thank you again so much for your generous support of this cause so far, and we would appreciate your additional donations.


    Peter W Adler, Esquire
    Wellesley, Massachusetts
    December 17, 2021
    https://www.gofundme.com/f/legal-cha...d-circumcision

    Leave a comment:


  • z726
    replied
    Yesterday's update:

    The Massachusetts Medicaid legal representative submitted their legal document describing their position on Nov. 29. We have until about Jan. 15 to submit our response. Then we schedule a court hearing.

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  • z726
    replied
    As of October 8th, still nothing's happening:

    The Massachusetts Medicaid legal representative requested another 30 day extension to submit his document to the Court. We are disappointed about the delay. It appears that the Court agrees with us that no further delay will be accepted. We are now waiting until the end of November for the State to respond.
    I guess we're waiting yet a few more weeks. At least the fundraiser's alive and well.

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  • z726
    replied
    And an update from September 18th: wait a few more weeks.

    The legal representative of the Massachusetts Medicaid office has received another extension until the end of October to file their next legal document for the case.

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  • z726
    replied
    It's been a few months, and there have been two updates posted on the fundraiser page. This is from July 13:

    We filed our written argument with the Appeals court to meet the June 30 deadline. Now we wait for the State to file their written response. Then we prepare for the Appeals hearing that will probably be in the next few months. Thanks for your support! Additional donations would be helpful.
    And this is from July 21:

    The legal representative for the Massachusetts Medicaid office requested and will receive an extension of 60 days to September 28 to file their next legal document for the case.
    Also, they're close to reaching the current fundraising goal. Here's the link again, for those of you who might want to help put it over the top:
    https://www.gofundme.com/f/legal-cha...d-circumcision

    Leave a comment:


  • z726
    replied
    Another update - while nothing's happened in the last couple weeks, Goldman does imply that they'll be contesting the previously mentioned ruling on federal law. Also, their lawyers still need grocery money. From April 15th:

    As mentioned we won a victory in the Superior Court. The judge denied MassHealth's Motion to Dismiss the lawsuit in its entirety. But now that ruling is on appeal and we have to defend our win. MassHealth also won a partial victory that might adversely affect lawsuits in other states, and we need to try to reverse that on appeal.

    Our lawyers are billing at extremely low rates and donating most of their time. Now they need to spend 100+ hours on the appeal. So we need to raise $5,000 - $10,000 more.

    Therefore we would be extremely grateful if you could contribute to our efforts.

    Leave a comment:


  • z726
    replied
    Update, as of April 2nd: the motion to dismiss was denied, so the lawsuit continues... slowly.

    April 2, 2021 by Ronald Goldman, Ph.D., Organizer
    We have great news to report, an interim victory in this case! After reading briefs and hearing oral argument, the Judge in Suffolk Superior Court denied MassHealth's motion to dismiss the lawsuit, so as of now, we have the right to proceed with it.

    More specifically, the judge ruled that we can move forward based on our claims that MassHealth is violating state law, but not on our claims that it is violating federal law. That does not affect our lawsuit, but it could affect later lawsuits in other states. We think that part of his decision is clearly erroneous.

    The case has been referred to the Appeals Court which allows the Judge to have his decision reviewed by the Appeals Court before the case proceeds. They have received the Judge's opinion and both sides will likely have an opportunity to submit their arguments. This may take a couple of months.

    If the Appeals Court affirms the Judge's ruling, we will proceed (back down at the lower court) with the case. This will involve a fact intensive inquiry including depositions and interrogatories, which are written requests for answers and documents. It is unlikely that the Appeals Court would rule against us.

    Leave a comment:


  • z726
    replied
    Here's an update from the GoFundMe page, posted on March 8th. Goldman is still waiting for a response to the February 18th hearing, but he summarizes what could come next:

    Our circumcision case against Massachusetts Medicaid (MassHealth) is pending the response from the judge. This case included our motion for a preliminary injunction and a motion to dismiss by MassHealth. The judge heard oral argument on these two motions on Feb. 18. These two motions are expected to be decided in the judge's response.

    The preliminary injunction decides what happens in the intervening period between the time of its issuance and when the factual hearing is to decide what happens permanently. If our motion is accepted, it means that MassHealth would be directed by the court to immediately stop paying for elective, non-therapeutic male infant circumcisions. Then there would be a wait of some months for a hearing on the merits of the case. It would be very likely that we would win the case if our motion for preliminary injunction is accepted. If our motion for preliminary injunction is rejected, then we also wait for a hearing on the merits of the case.

    The decision on the motion to dismiss is akin to the court acting as a gatekeeper for whether they even will allow the case to be heard on the merits; if the motion to dismiss is granted, it means we never get to make our arguments about whether it is proper for Medicaid to continue paying for circumcisions (unless we appeal the court's decision), whereas if the motion to dismiss is denied, the court will grant a full hearing to the factual question of whether circumcision is necessary such that MassHealth should pay for it through their Medicaid program.

    Thanks for your support!

    Leave a comment:

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