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If you are a Wisconsin Medicaid beneficiary or a medical provider with questions about how the Court's decision affects you or your patients, please contact attorneys Joseph Wardenski or Orly May at (202) 728-1888 for further information.

This class action lawsuit, filed in the U.S. District Court for the Western District of Wisconsin, challenges Wisconsin Medicaid's categorical exclusion on gender-confirming treatments for transgender beneficiaries with gender dysphoria (the "Challenged Exclusion").

Plaintiffs Cody Flack, Sara Ann Makenzie, Courtney Sherwin, and Marie Kelly are transgender Wisconsin Medicaid beneficiaries who have been unable to obtain medically necessary care based on this discriminatory exclusion. Plaintiffs, on behalf of themselves and other Wisconsin Medicaid beneficiaries, challenge the Challenged Exclusion as a violation of their rights under Section 1557 of the Affordable Care Act, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and the federal Medicaid Act.

In July 2018, Judge William Conley preliminarily enjoined the State's enforcement of the Challenged Exclusion for the two original plaintiffs, Cody Flack and Sara Ann Makenzie. In fall 2018, the firm filed an amended complaint adding the other named plaintiffs and class allegations. Plaintiffs then moved for class certification, and asked the court to expand the preliminary injunction to bar the State from denying gender-confirming treatments to any Medicaid beneficiary.

On April 23, 2019, the Court granted Plaintiffs' motion for class certification and expanded the preliminary injunction to cover all transgender Wisconsin Medicaid beneficiaries needing gender-confirming care during the pendency of the lawsuit. Under the injunction, Wisconsin Medicaid is enjoined from applying the Challenged Exclusion to deny coverage for gender-confirming care to any transgender Wisconsin Medicaid beneficiary, and that all coverage requests must be reviewed for individual medical necessity. 

Plaintiffs have affirmatively moved for summary judgment on all of their claims and are seeking a permanent injunction of the Challenged Exclusion. A trial is set for September 2019.

The Relman, Dane & Colfax litigation team is led by Joe Wardenski, Jennifer Klar, Orly May, and Alexa Milton. The firm is co-counseling with Abigail Coursolle and Catherine McKee of the National Health Law Program and Robert Theine Pledl of Davis & Pledl, S.C.

Case Citation

Flack v. Wisconsin Department of Health Services, No. 3:18-cv-309 (W.D. Wis.)

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