What we learned in April about the Florida AHCA’s Medicaid transition care exclusion Rule 59G-1.050(7) and subsequent litigation in Dekker v. Weida

Summary

In August 2022, the Florida Agency for Health Care Administration (AHCA) enacted rule 59G-1.050(7) revoking state Medicaid coverage for treatment of gender dysphoria, including puberty blockers, hormone therapy, and gender-affirming surgeries. This rule and the Florida Boards of Medicine’s administrative bans on trans youth care were supported by the AHCA’s June 2 Generally Acceptable Professional Medical Standards determination, which was the product of a highly nonstandard process uniquely involving anti-trans experts from outside the agency. The rule was promptly challenged in a September 2022 suit against AHCA by plaintiffs Dekker et al. (4:22-cv-00325); a preliminary injunction was denied and the challenged exclusion has remained in effect pending trial in May 2023.

“A conclusion in search of an argument”

On Friday, April 28, 2023, the plaintiffs filed their trial brief (Doc. 199) with over 350 attached exhibits containing information about the AHCA’s anti-trans rulemaking process that was not previously known to the public. This evidence confirms early coordination between the office of Governor Ron DeSantis, the Florida Department of Health, and the AHCA at meetings in early April 2022 (Doc. 200–5). AHCA chief litigation counsel Andrew T. Sheeran was even seeking out anti-trans expert witnesses, including Quentin Van Meter (Pl. 337) and anti-gay conversion therapy provider Miriam Grossman (Pl. 274), prior to FLDOH’s April 20, 2022 anti-trans press release. A series of diagrams dated to June 2022 describe a “Gender Dysphoria/Transgender Health Care Policy Pathway” (Plaintiffs’ trial exhibit 296), “Non-Legislative Pathway” (Pl. 295), and “Projected Rulemaking Timeline” (Pl. 294), beginning with state surgeon general Joseph Ladapo’s April anti-trans guidance and ending in June-September 2022 with “Care Effectively Banned”. This indicates that the AHCA had not initiated an open-ended assessment of evidence on certain medical treatments with the possibility that this evidence could be persuasively robust, but rather that this exclusion was already decided at the outset. Jeffrey English, AHCA’s “GAPMS guy”, called the finding “a conclusion in search of an argument” (Doc. 199).

The task of producing the desired GAPMS outcome was given to Matthew Brackett and Nai Chen of the AHCA’s Canadian Prescription Drug Importation Program (CPDIP) (Doc. 199), rather than Jeffrey English or the usual Medical and Behavioral Health Coverage Policy department that had authored the previous 2016–2017 GAPMS approving coverage of gender-affirming care (Pl. 256). Romina Brignardello-Petersen of the anti-trans group SEGM was told by AHCA chief litigation counsel Andrew Sheeran on April 21 to use SEGM associate Stephen B. Levine’s expert declaration in the case Tingley v. Ferguson as a model for her portion of the GAPMS report (Pl. 275). After being told by AHCA assistant deputy secretary Jason C. Weida to “keep each expert below $35,000 US for budgetary purposes” (Pl. 280), Brignardello-Petersen billed the state $34,800 (Pl. 292A).

AHCA chooses a fringe hate group

A leader of the anti-LGBTQ hate group American College of Pediatricians, Andre Van Mol, was paid by the state to provide revisions to AHCA’s 2022 GAPMS draft report in May (Pl. 286B). Members of the American College of Pediatricians (ACPeds) hold a preexisting absolute commitment preventing them from “[s]aying in their professional opinions that these gender intervention procedures are the standard of care, are safe, are beneficial, are not experimental, or should otherwise be recommended”, as declared by ACPeds president Quentin Van Meter in American College of Pediatricians et al. v. Becerra et al. (doc. 15–1, Ex. 1 at 41(m), November 9, 2021).

Various edits handwritten on the draft suggest referring to trans people’s genitals as “pseudo-genitalia” as well as calling puberty blockers a “gateway drug” (Pl. 282), and these edits would ultimately be incorporated into the agency’s final report (Pl. 297A). Van Mol is on the board of elders at the Bethel Church of Redding, California, and teaches bioethics at the Bethel School of Supernatural Ministry, whose students are well-known in the community for attempting to reanimate dead bodies with “miracles”.

In a 55-page list of references provided to AHCA, Van Mol asserts “transgenderism is an overarching ideology”, attributing this term to Ken Zucker (Pl. 286A). During early May, Van Mol appeared to be attempting to radicalize AHCA’s Jason Weida with anti-Semitic conspiracy theories about “the rich, white men institutionalizing transgender ideology” and “the billionaires behind the LGBT movement” (Pl. 284, 285). Texting Weida about these articles, Van Mol said on May 6, 2022: “Jason, I sent that only to you to minimize scatter risk.” (Pl. 290). Van Mol later emailed Weida and four lawyers to discuss SEGM’s failed anti-trans Resolution 27 (2022) at the American Academy of Pediatrics (Pl. 347).

Core SEGM members guide AHCA’s report

On May 17, consultants Ema Syrulnik and Evgenia “Zhenya” M. Abbruzzese (zhenyapdx/E. Abbruzzese) of SEGM also met with AHCA staff to provide feedback on the report, with Syrulnik sending a link to an article on a Cochrane blog that would later be cited in the final GAPMS report (Pl. 338). Publications coauthored by Abbruzzese, Syrulnik, and other SEGM members were cited by the AHCA’s hired anti-trans experts during the GAPMS process (James Cantor, Attachment D) and in their expert declarations in Dekker v. Weida (Levine report; Kaliebe report; Hruz report; Biggs report; Kaliebe rebuttal report; Hruz rebuttal report; Van Meter rebuttal report). Confusingly, Matthew Brackett had stated during deposition on February 8, 2023 that he was the sole author responsible for reviewing literature and drafting the report, with no assistance from others (Doc. 120–6). The plaintiffs’ trial brief highlights this apparent discrepancy (Doc. 199):

Indeed, Van Mol appears to have been the true architect of the GAPMS Report that Brackett claims he solely drafted. (ECF 120–6, Brackett Feb. 8 Dep. at 97:1619, 98:3–8). Brackett testified that he was the only one involved in reviewing the literature and writing the GAPMS Report, and that nobody else provided an outline or assisted with the drafting. He acknowledged only “verbal consultations” with the outside consultants. (See ECF 120–6, Brackett Feb. 8 Dep. at 96:11–97:19, 98:3–21; 104:8–20; 111:4–11, 145:14–146:24.) Van Mol wrote a document to be used in the GAPMS review process, which he sent to Weida and Brackett in early May. (Exs. 328, 328A 5/1/22 email from Van Mol with attachment (ECF 183–31 to 183–32).) AHCA used this document as guidance in drafting the main report. (Compare Ex. 328A, attachment to 5/1/22 email (ECF 183–32), with Ex. 18, June 2022 GAPMS Report report (ECF 175–18).) Van Mol also provided Brackett and Weida with additional sources throughout the process. (Exs. 284; 290; 347, emails from Van Mol to Weida (ECF 182–21, 182–29, 184–12).) And after the GAPMS report was drafted, Van Mol provided seven pages of corrections to the draft. (Exs. 286, 286AB, email from Andre Van Mol dated May 13, 2022 with attachment (ECF 182–23 to 182–25).)

Following the GAPMS report’s publication in June 2022, Andre Van Mol was again commissioned in July 2022 to critique public comments on the rule provided by the AAP, WPATH, the Endocrine Society (Pl. 326, 327), and professors of the Yale School of Medicine (Pl. 348, 312). “GAPMS guy” Jeffrey English stated in deposition on January 23, 2023 that the AHCA’s GAPMS process had never before involved the governor and heads of executive agencies, and had never included outside experts commissioned to produce reports, a public notice of a coverage determination, a press release on the conclusion, or a website to promote the determination (Doc. 199).

The latest filings confirm many concerns noted by Gender Analysis regarding the predetermined nature of the GAPMS process, including our findings of several hired experts’ conflicts of interest due to prior commitments with outside organizations (“Catholic Medical Association members wrote a majority of Florida Medicaid’s anti-trans expert reports”), undisclosed coordination between AHCA and the anti-trans group SEGM (Gender Analysis FLBOM complaint 1), and the extensive involvement of anti-gay conversion therapy advocates (Gender Analysis FLBOM complaint 2).

Essential documents

• Plaintiffs’ trial brief, April 28, 2023 (doc. 199)
• — Deposition of Jeffrey English, January 23, 2023 (p. 153)
• — Deposition of G. Kevin Donovan, March 22, 2023 (p. 194)
• — Deposition of Jason C. Weida, April 24, 2023 (doc. 200–5)
• Plaintiffs’ memorandum of law in opposition to defendants’ motion for summary judgment, April 28, 2023 (doc. 200)
• Plaintiffs’ notice of filing trial exhibits, April 27, 2023 (doc. 175). A list of filed exhibits by number, description, and date.
• Text message thread between Jason C. Weida and Andre Van Mol, April 1, 2022 — January 27, 2023 (Pl. 290).
• AHCA Microsoft Teams meeting invitations, April 12 — July 20, 2022 (Pl. 338).
• May 2022 early draft GAPMS report with handwritten notes (Pl. 282)
• June 2022, Gender Dysphoria/Transgender Health Care Policy Pathway (Pl. 296)
• — Gender Dysphoria/Transgender Health Care Non-Legislative Pathway (Pl. 295)
• — Projected Rulemaking Timeline (Pl. 294)
• June 2, 2022 final GAPMS determination (Pl. 297A)
• June 2022 AHCA template for denying requests for a rule workshop on the challenged exclusion (Pl. 293).
• Florida Medicaid Comment Summary for Rule 59G-1.050, F.A.C. and Responses, following the July 8, 2022 rule hearing (Pl. 326). Review and critique was provided by Andre Van Mol in reply to public comments from AAP, the Endocrine Society, and Yale School of Medicine professors (Pl. 312).
• — Andre Van Mol “on Alstott (so-called Yale) letter” for AHCA, July 19, 2022 (Pl. 348).
• Gender Analysis unofficial docket, Dekker et al. v. Weida et al. (4:22-cv-00325).