Public Health

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Beyond Categorical Exclusions: Access to Transgender Healthcare in State Medicaid Programs

Issues Volume 51, Issue 1

By Samuel Rosh

This Note addresses a major barrier to care that transgender individuals face: “categorical exclusions” barring payment for healthcare related to gender transition in state Medicaid programs, along with policies prohibiting payment for such care when deemed “cosmetic.” It first argues that because the dysphoria and discrimination that transgender individuals experience affect their quality of life and mental well-being, and derive from a discord between their appearance and gender identity, those considerations should be taken into account in the legal determination of medical necessity. As medical studies and the views of major medical associations demonstrate, healthcare for gender transition has been found medically necessary for some individuals to mitigate their gender dysphoria.

This Note then describes the arguments for and against the invalidity of categorical exclusions and other policies that deny transgender individuals access to medically necessary care, focusing on Section 1557 of the Affordable Care Act as well as more general provisions of federal Medicaid law. It then examines these issues in the context of litigation regarding New York’s limitations on transgender healthcare, which ultimately culminated in a medical necessity standard. Finally, it considers the arguments that Medicaid coverage for gender transition would be too costly, and that requiring states to cover such care would undermine principles of federalism.

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Settling High: A Common Law Public Nuisance Response to the Opioid Epidemic

Issues Volume 52, Issue 1

By Michael J. Purcell

As legislatures and administrative agencies have struggled to successfully address the ongoing opioid crisis, many state attorneys general have stepped in and filed suit against major pharmaceutical manufacturers and distributors. Among the claims being made in such suits is one of “public nuisance.” Though these types of parens patriae claims have historically been a controversial means of dealing with major social issues, they also have the potential to serve an invaluable role in getting defendants to the settlement table. In order for such settlements to prove valuable, however, state attorneys general must think critically about how to structure them to ensure that they work in conjunction with ongoing legislative and administrative policies to address the full scope of the opioid epidemic.

By analyzing the strengths and weaknesses of past settlements in public health litigation, state attorneys general can structure a settlement which builds on these strengths and supports an effective response to the largely unique issues posed by the opioid crisis. Specifically, this Note argues that states should continue to pursue public nuisance causes of action against opioid manufacturers in an effort to get them to negotiate large-scale settlements that could then be used to finance immediate and ongoing legislative responses to the opioid epidemic. Part II discusses the background of the opioid crisis, explores how state and federal governments have unsuccessfully responded to it, and argues that the greatest impediment to the success of such legislative and administrative efforts has been a lack of financial resources. Part III then explores public nuisance law as it has been used in dealing with public health issues and how it might serve an invaluable role in incentivizing high settlement in the context of opioid manufacturers. Finally, Part IV draws on previous settlements to create a template for how state attorneys general in settlement negotiations with opioid manufacturers ought to structure settlements moving forward. Ultimately, the Note posits that they should turn their attention away from viewing settlements as a means to establish new substantive regulations for the industry and should instead focus their efforts on maximizing financial returns from these settlements such that they may fill the resource gap that has crippled the state’s ability to fully combat the opioid crisis.

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