A judge has ordered New York City’s Administration for Children’s Services to pay for sex reassignment surgery for a 20-year-old man in foster care, overruling the agency’s refusal. Manhattan Supreme Court Justice Peter Moulton said the agency failed to follow its own internal procedures when considering D.F.’s application for procedures costing about $46,000 to conform his appearance with a “female gender identity.”
Noting D.F.’s “almost certain inability” to pay for the procedures once aging out of foster care, Moulton later added, “Payment by ACS for necessary medical procedures may be a transgender youth’s only chance to achieve congruence between her gender identity and her physical appearance.”
Under ACS guidelines for the payment of medically necessary treatments not covered by Medicaid, the foster care agency first determines if there are other sources for payment and then submits paperwork from medical professionals about the need for the treatment or procedure. The application goes to the ACS Health Review Committee, which makes recommendations to the deputy ACS commissioner, who has final say on the application. ACS guidelines said applications for matters connected to a transgender person’s treatment shall be made in accordance with standards set by the World Professional Association for Transgender Health.
In May 2012, D.F.’s group home submitted a request ACS pay for D.F.’s breast augmentation, tracheal shaving and laser hair removal. Included in the application were letters from psychiatrists at the group home and clinic who said the procedures were necessary. The committee approved D.F.’s application even while noting her repeated absences. But Deputy Commissioner Benita Miller denied the application, pointing to D.F.’s absences and her failure to receive “ongoing psychiatric care.”
D.F. tried again about a year later with an application for a wider range of procedures, including full sexual reassignment. Her psychiatrists submitted new letters in support. ACS’ committee did not review the second application. Instead, ACS consulted Dr. John Steever, an assistant professor of pediatrics and adolescent medicine at the Icahn School of Medicine at Mount Sinai, who has a longtime focus on health matters for youths like D.F. In court papers, the city said the committee did not review the second application because it had been sent soon after the first denial and basically repeated the first application, but with requests for two more procedures.
In any event, Steever reviewed D.F.’s records but did not meet with her. He said it was best to hold off on the procedures “at this time” until she could heed follow up care directions, noting her “poor adherence to ACS recommendations and programs.”
Failure to follow post-operative protocols could make for consequences like infection, unnecessary scarring, urinary problems and sexual sensation problems, said Steever. Moreover, the procedures were not needed to address emergencies, he said.
Miller relied on Steever to deny D.F.’s second application and D.F. sued to void the second bid’s denial.
In his ruling, Moulton said a denial based on an individual’s possible non-adherence with post-operative care had “facial validity.” But medical professionals who knew of D.F.’s absences still said surgery was needed and did not question her willingness to stick with post-operative care. The judge said D.F.’s medical records revealed her “commitment and maturity in dealing with her health care, both trans-related and non-trans-related.” Among other things, she consistently followed hormone therapy directions and tested negative for sexually-transmitted diseases and HIV, he said.