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12.10.2019

Relman, Dane & Colfax is pleased to announce the successful resolution of Flack v. Wisconsin Department of Health Services, a class action lawsuit challenging Wisconsin Medicaid’s longstanding coverage exclusion on gender-confirming treatments and services for transgender beneficiaries with gender dysphoria. The State of Wisconsin has chosen not to appeal a federal court’s ruling that the exclusion violated federal law, and has agreed to settle the named plaintiffs’ remaining claims.

The Flack lawsuit, filed in May 2017, challenged a 1997 Wisconsin regulation that categorically excluded Medicaid coverage for surgical and hormone treatments for gender dysphoria. During the 22 years the policy was in place, countless transgender Medicaid beneficiaries in Wisconsin were denied coverage for medically necessary gender-confirming health care.

The resolution preserves a Wisconsin federal court’s landmark decision from August 2019, invalidating the discriminatory policy. In that decision, U.S. District Judge William Conley granted summary judgment to plaintiffs on all of their claims. In a 38-page decision, Judge Conley ruled that the challenged exclusion violated Section 1557 of the Affordable Care Act; the federal Medicaid Act; and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Judge Conley’s opinion recognizes the “consensus within the medical profession that gender dysphoria is a serious medical condition, which if left untreated or inadequately treated can cause adverse symptoms, such as anxiety, depression, serious mental distress, self-harm, and suicidal ideation.”

On November 8, the Court entered final judgment for plaintiffs, permanently enjoining DHS from enforcing the exclusion and ordering the agency to adopt a coverage policy for previously excluded treatments for gender dysphoria.

The successful outcome of the case follows a string of earlier victories for the plaintiffs. In July 2018, Judge Conley issued a preliminary injunction barring DHS from denying coverage for gender-confirming surgeries to the two original plaintiffs, Cody Flack from Green Bay and Sara Ann Makenzie from Baraboo. In September 2018, Marie Kelly from Milwaukee and Courtney Sherwin from Janesville joined the suit as plaintiffs. In April 2019, the Court issued a decision certifying the case as a class action on behalf of an estimated 5,000 transgender adults on Wisconsin Medicaid and expanding the preliminary injunction for the entire class.

As part of the settlement agreement announced today, the State will pay a total of $837,500 in damages to the named plaintiffs, as well as $1.3625 million to class counsel for plaintiffs’ attorneys’ fees and costs.

The Relman, Dane & Colfax case team was led by Joseph Wardenski, Jennifer Klar, Orly May, Alexa Milton, and Sasha Samberg-Champion, with assistance from paralegals Brittany Lee, Abigail Moats, and Amalia Perez. Former paralegal Mark Vandenberg and former summer associates Jacob Addelson and Jonathan Cohen made significant contributions to the case. The firm co-counseled with Rock Pledl of Davis & Pledl, S.C. in Milwaukee, and Abigail Coursolle and Catherine McKee of the National Health Law Program.

More information about the case, including court filings and other case documents, is available here.

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