Circumcision Resource Center is pleased to report an interim victory in what is likely to be a landmark circumcision case. This is the first win to our knowledge in a circumcision lawsuit in the United States other than malpractice suits for negligently performed circumcision.
The lawsuit is Ronald Goldman And 27 Other Taxpayers v. Secretary of The Executive Office of Health And Human Services, Civil Action #2084CV01604, filed in Massachusetts Superior Court in July of 2020. Incidentally, Ronald Goldman has raised more than $25,000 for the case in donations from supporters. The fund-raising site, online here, contains more information about the lawsuit, but the following summarizes the current status.
After ruling on the case this March, the Superior Court referred it to the Massachusetts Appeals Court, Civil Action #2021-P-0318. The Plaintiffs are preparing their appellate brief, due on June 30.
The lawsuit is based on federal and state Medicaid law which require that Medicaid payments shall be only for medically necessary services. Circumcision of infants is unnecessary surgery. A 2011 article in the Journal of Law and Medicine stated that 12 U.S. states had ended Medicaid payments for circumcision. In the face of declining Medicaid coverage and revenues, the American Academy of Pediatrics wrote in its 2012 circumcision policy statement and guidelines that third party payers, a reference to insurers including Medicaid, should pay for elective circumcision, but the AAP did not refute the 2011 article or say why the state should pay for unnecessary surgery.
The lead petitioner or plaintiff in the case is Ronald Goldman, Ph.D. He is the Founder and Executive Director of the Circumcision Resource Center, the author of Circumcision: The Hidden Trauma, and he has testified about the psychological harm caused by circumcision at the invitation of the Council of Europe. Massachusetts counsel is the professor and legal scholar Peter W. Adler, who wrote the 2011 article on circumcision. The plaintiffs are also represented by Attorney Andrew DeLaney of New Jersey, who is counsel in two other active circumcision cases as well.
In a decision on March 10, 2021, Judge Robert B. Gordon of the Superior Court described the Medicaid lawsuit as follows:
Goldman and twenty-seven other Massachusetts taxpayers subsequently filed the instant action. In their Verified Complaint, the Plaintiffs allege that MassHealth is aware that most neonatal circumcisions are performed at the election of parents, for cultural and religious reasons unrelated to medicine, and are not ‘medically necessary’ under MassHealth’s own definition of the term. The Plaintiffs further allege that, notwithstanding this awareness, MassHealth has a policy and practice of providing Medicaid coverage for neonatal male circumcisions without subjecting claims seeking reimbursement for the procedure to utilization review or otherwise inquiring into whether the procedure was in fact medically necessary. The Plaintiffs argue that MassHealth’s circumcision policy thus violates state and federal law, and seek to enjoin MassHealth from reimbursing physicians and hospitals for performed circumcisions unless a physician provides a valid diagnosis of a medical condition requiring the procedure and a certification that it was in fact medically necessary. The Plaintiffs also seek an order requiring MassHealth to establish an institutional review board to ensure compliance, and further requiring MassHealth to report to the Board of Registration in Medicine any physicians who unlawfully seek reimbursement for circumcisions that are not medically necessary.
The Superior Court ruled in Plaintiffs’ favor on their claim that MassHealth is violating state Medicaid law. The court reasoned that Massachusetts G.L. c. 29, § 63 allows taxpayers to challenge any imminent unlawful expenditure by the Commonwealth. Plaintiffs allege that MassHealth is violating 130 Code Mass. Regs. § 450.204, which prohibits the state from paying providers for services that are not medically necessary, and which requires that billing “be substantiated by evidence of medical necessity. Moreover, MassHealth has failed and refuses to establish a utilization review board to determine the medical necessity of services, as required by 130 Code Mass. Regs. § 415.414(B). Accordingly, the court ruled, Plaintiffs have “stated a plausible claim for relief under G.L. c. 29, § 63.”
This is a major victory, even though the Superior Court did not enjoin MassHealth’s unlawful conduct as the Plaintiffs requested at this time. If as expected the ruling stands on appeal, the Plaintiffs have the right to proceed with discovery in the lawsuit, to move again for a preliminary injunction once the facts have been established, and to move to compel MassHealth to comply with Massachusetts law forbidding payments for unnecessary circumcisions.
Unfortunately, the victory was not complete as the Superior Court ruled that Plaintiffs may not proceed on their claim that MassHealth is also violating federal Medicaid law. Plaintiffs’ attorneys believe that ruling was clearly erroneous. As the Superior Court itself stated, “Massachusetts G.L. c. 29, § 63 allows taxpayers to challenge any imminent unlawful expenditure by the Commonwealth” (emphasis added), thus including violations of federal and well as state law.
It will take a few months for the parties to file their briefs, and then the matter will be in the hands of the Massachusetts Appeals Court. We will of course apprise you when the Appeals Court issues its ruling, likely this fall.