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A Florida judge has ordered the state’s Agency for Health Care Administration (AHCA) to produce documents related to its determination that gender-affirming health care cannot be covered under Medicaid because treatments are “experimental and investigational.”
Attorneys for the AHCA — the agency that controls most of the state’s Medicaid program — will have until Feb. 14 to hand over documents it has previously argued are protected under attorney-client privilege and work-product privilege.
Those include exchanges between agency officials and “any person” involved in the creation of a June AHCA report that determined available medical literature provides “insufficient evidence” that puberty blockers, hormones and gender-affirming surgeries are safe and effective treatments for gender dysphoria.
The report has been used to bar an estimated 9,000 transgender Floridians from using Medicaid to help pay for gender-affirming health care and was cited during a November meeting between the state’s medical boards that resulted in a vote to adopt a rule that prevents minors in Florida from accessing gender-affirming treatments.
Gender-affirming health care for youths and adults has been deemed safe and medically necessary by most professional medical organizations.
In a six-page order published Tuesday, U.S. District Judge Robert Hinkle said the AHCA must produce, among other documents, its communications with experts that were used to inform the agency’s June report on gender-affirming health care and the ensuing rule that excluded treatments from Medicaid.
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Lawyers for the agency have said that while the desired documents were created for rulemaking purposes, they were also intended for use in litigation they knew would follow the adoption of the rule, making them protected documents by law.
Hinkle said he disagreed.
“Even if this leaves room in an appropriate circumstance for protection of documents created for dual purposes — not just when the primary purpose was to aid in future litigation — the experts at issue here were an essential part of the mandated rulemaking process,” he wrote in the order, which is part of an ongoing lawsuit challenging Florida’s Medicaid exclusion.
Hinkle continued, “Either the experts were retained to assist in an honest evaluative process—in which event their communications were not within work-product protection — or the rulemaking process was a sham and the real goal was to prevail in the anticipated litigation — a possibility the defendants could embrace to win the discovery battle only by acknowledging that the rulemaking process was fatally flawed, or nearly so.”
Court documents filed earlier this month suggest the state’s rulemaking process was just that, with an AHCA employee alleging that the June report “does not present an honest and accurate assessment” of medical evidence and practice guidelines related to gender-affirming health care.
Attorneys for the AHCA must file a revised log of protected documents by Feb. 2, according to Hinkle’s order. The plaintiffs in the case — two transgender minors and two transgender adults in their 20s — may file an additional motion to compel if they believe the protected documents are being “improperly withheld.”
