Empower Wisconsin | Oct. 23, 2019
By M.D. Kittle
MADISON — The Evers administration’s proposed emergency rule requiring taxpayer-funded sex changes under Medicaid could be put in place without any legislative oversight.
As Empower Wisconsin first reported Tuesday, the state Department of Health Services (DHS) is poised to repeal a long-standing rule that excluded BadgerCare — Wisconsin’s Medicaid program — from covering “[d]rugs, including hormone therapy, associated with transsexual surgery or medically unnecessary alteration of sexual anatomy or characteristics” and [t]ranssexual surgery.”
State Rep. Joe Sanfelippo (R-New Berlin) said due to the emergency status of the rule change, it may not come before the Health Services Committee, of which Sanfelippo is a member.
“The fact that they’re calling this an emergency rule change could give them some leeway to skirt the entire process and just make the change without going through the public hearing,” the lawmaker told Empower Wisconsin Tuesday on the Jay Weber Show, on NewsTalk 1130 WISN. “That would be a shame, especially for something that is this big a change.”
Sanfellipo said taxpayers should not have to pay for these kinds of procedures.
A federal court ruled they do.
In August, U.S. District Court Judge William Conley sided with plaintiffs in a lawsuit alleging Wisconsin’s exclusions are discriminatory. Conley a year earlier issued a preliminary injunction ordering the state to pay for the sexual reassignments of the two plaintiffs in the case. DHS, under the direction of then-Gov. Scott Walker, a Republican, appealed the injunction.
Conley came back with a permanent injunction, asserting that the state’s argument that sex reassignment and hormonal treatments are unnecessary “is no longer reasonable.” His ruling points to the American Medical Association position on the necessity of such procedures.
In its rule change, DHS said there are “no reasonable alternatives to the repeal” of the exclusion because of Conley’s injunction. The judge, DHS points out, previously had ruled against an identical exclusion relating to coverage from the Department of Employee Trust Funds. On a 5-4 vote, in August 2018 the department’s Group Insurance Board, which oversees state employee medical benefits, approved health coverage for hormone treatment and “medically necessary gender reassignment” surgery.
“The exclusions must be repealed to ensure consistency between Department policy and its rule and to ensure the public is aware that Medicaid coverage is available for treatment services,” the agency wrote.
Attorney General Josh Kaul could have appealed Conley’s ruling, Sanfelippo said. The AG, after all, is supposed to defend the Legislature and its legislative intent. Not liberal Kaul, who earlier this year bailed out of a workers rights lawsuit his predecessor had pursued, even as the U.S. Supreme Court was considering taking the case.
“You have a court ruling that comes in and right away the Evers administration is just rolling over, and rather than appealing that court decision or looking for a way to tailor the law so we could meet the Legislature’s intent, they’re going to roll over right way and change the law so the taxpayers have to end up paying for sex changes,” Sanfellipo said.
“That’s just not what our tax dollars are meant for and I don’t think this is what the majority of Wisconsin taxpayers want their dollars to be spent on.”
As the state Supreme Court mulls over the final lawsuit on last year’s extraordinary legislative session, Sanfelippo said the Evers administration’s policy change on transexual surgery and Kaul’s unwillingness to defend the Legislature in court drive home why the session was so important. Evers and his supporters were livid that the Republican-controlled Legislature passed bills limiting the power of the executive branch.
“They are selectively enforcing what they want,” Sanfellipo said. “That’s why we did the extraordinary session bills. The attorney general is subverting the will of the duly elected Legislature by not properly defending the statutes and the laws we’ve put in place.”