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Court rejects intactivist lawsuit against Mass. Medicaid


Published: July 22, 2022

Update: July 28, 2022


In July 2020 psychologist Ronald Goldman, joined by more than two dozen fellow Massachusetts taxpayers, filed a lawsuit against MassHealth to force the state agency to stop using Medicaid funds for elective infant circumcisions. [1] Goldman is executive director of the anti-circumcision organization Circumcision Resource Center and author of a 1998 book, Circumcision: The Hidden Trauma.


The plaintiffs argued that Medicaid funds may only be used for medically necessary procedures and services. Since they believe that neonatal circumcision is never medically necessary, they argue that payments for the procedure constitute Medicaid fraud. Among their demands, the plaintiffs petitioned the court to require that MassHealth set up an institutional review board to ensure that only medically necessary circumcisions are funded, and to initiate disciplinary action against any physicians or health care facilities that seek MassHealth reimbursement for any circumcisions deemed unnecessary.


Currently Medicaid programs in 37 states cover the procedure. Circumcision opponents eagerly anticipated this lawsuit as a model to end Medicaid coverage throughout the United States, and they donated more than $40,000 to fund legal costs. [2] In April 2021 the trial court ruled that the plaintiffs could sue in state court but not in federal court. Both parties appealed the ruling, and Goldman confidently told donors, "It is unlikely that the Appeals Court would rule against us." [3]


This morning - two years to the day after the lawsuit was filed - the Massachusetts Appeals Court has ruled against Goldman and dismissed the lawsuit. The Court ruled, “The order allowing in part and denying in part MassHealth's motion to dismiss is vacated, and the matter is remanded for entry of judgment dismissing the complaint in its entirety." [4] (emphasis added)


The Court did not consider the merits of circumcision. Rather, the three-justice panel ruled that the plaintiffs lack standing to sue because none of them had been directly harmed by the actions of MassHealth. The Court also rejected the plaintiffs’ claims. Writing on behalf of the panel, Justice Sookyoung Shin explained: “No statute or regulation requires MassHealth to conduct prepayment review of all claims, nor would this be feasible given the sheer number of claims that MassHealth receives each year. Rather, it is within MassHealth's discretion to decide which services will require more individualized review for medical necessity and which services will be excluded from coverage.” [4]


The lead counsel for the plaintiffs is Peter W. Adler, author of a 2012 paper, Is Circumcision Legal?, [5] and a 2020 article, Is Circumcision a Fraud? [6] The latter article formed the basis for his recent book, Circumcision is a Fraud and the Coming Legal Reckoning. [7] He assured an intactivist audience that his book is "really well documented. There are 685 footnotes in the book." [8] In doing so, Adler confused quantity with quality. [9] Among his bold and extreme legal theories, he argues that irrespective of the statute of limitations, a circumcised man could sue the practitioner at any point in his life. [10]


Readers can access the written briefs, the oral arguments (podcast), and the decision at this link:

https://www.ma-appellatecourts.org/docket/2021-P-0318



Written briefs

A footnote in a 2009 U.S. District Court order admonished attorneys to avoid using emotive language in legal briefs. “At various points in their briefing, Plaintiffs resort to rhetorical and inflammatory language… These discretions from legal civility do not help Plaintiff’s case, and the Court encourages counsel to pause a moment before resorting to the computer thesaurus tool when writing their briefs.” [11] A law school professor explained, “Writers use hyperbole thinking it will bolster their arguments, but it often has the opposite effect of signaling to the reader that the facts or arguments are so weak, the writer can’t rely on them alone to win.” [12]


Adler ignored this caveat to avoid inflammatory rhetoric. He maintained that circumcision is "violence" and harmful "even if executed flawlessly." He wrote that circumcision is painful and can cause sexual and psychological harm. He wrote that circumcision "harms all boys and men." [13] Most of these claims are hyperbolic or disputed; none was necessary to support his primary argument.


Adler also failed to consider his audience. Emotional appeals may be effective when trying to convince some parents and circumcised men, but the judicial panel likely read them with disfavor. Adler should have set aside the hyperbolic and contested claims and instead focused on the lawsuit’s central claim: that newborn circumcision is unnecessary, and therefore it cannot be a medically necessary procedure eligible for Medicaid coverage.


The plaintiffs’ appellant brief repeatedly stated, "this is a simple case," and their reply brief called it, "a very simple case." [emphasis added] [13] Telling a judicial panel that your case is "simple" is never helpful. If true, the statement is unnecessary; if false, the statement appears brash. The brief stated that "MassHealth's defenses are all spurious" [deceitful] and accused the agency of knowing that physicians are using false diagnoses and committing fraud. [14] Stating facts supported by evidence would have been a superior strategy to attacking the other litigants as corrupt and deceitful, attacks that were unlikely to impress the panel. In a reply brief MassHealth described the emotive statements as "hyperbolic," "inflammatory," "unfounded,” and "unsupported." [15]


Adler concluded by warning that a court ruling in favor of the state would "set a terrible precedent for the other states that still fund ... circumcisions." He wrote that a decision in favor of the plaintiffs would "set a precedent for other states that are unlawfully funding unnecessary circumcisions." [13] Here Adler confused his objective with that of the court. As an impartial arbiter, a judge seeks to apply the law correctly, not to create precedent to support a litigant’s partisan agenda. [16] Judges seek to issue rulings that are solid enough to be upheld upon appeal, and a higher court would be more likely to overturn a novel ruling that is not based on the law and legal precedent.



Oral arguments

Adler began his oral argument with rhetorical flourish: “There is something rotten in the Commonwealth of Massachusetts!” He started to argue that physicians and hospitals were committing Medicaid fraud. The lead justice interrupted to advise him that he should assume that the panel was familiar with the written briefs, they were not deciding the merits of the case, and he should move to the issues before the appeals court. Caught off guard, Adler seemed unprepared to explain why the plaintiffs can bring a claim against MassHealth in the first place. The panel seemed frustrated when he continued to argue the merits of the case. When questioned, he couldn’t explain under which provision of federal law his clients were suing. [17]


Co-counsel Andrew DeLaney made the most of his time; he seemed more poised, polished, and prepared. While Adler's presentation was filled with nervous stutters and uncomfortable pauses, his co-counsel always sounded ready with an answer. [18] Nevertheless, DeLaney, too, wandered from the standing issue to the merits. Unable to cite any prior ruling that allowed a taxpayer to challenge a regulatory program, he asked the court to take a "novel" and "brave step," which is what attorneys request when they have no precedent to support their position. Neither Adler nor DeLaney could satisfy the court's question requesting a limiting principle that would bar a group of taxpayers from suing to stop MassHealth from covering mammograms or colonoscopies. [17]


MassHealth attorney Samuel Furgang explained that the provision prohibiting Medicaid coverage for unnecessary procedures is directed at medical providers, not the state agency. He fielded questions about how the agency determines which medical procedures are covered, how program policies and decisions are reviewed, and how taxpayers could challenge a covered procedure. Furgang warned that "the idea of basically overtaking the important administrative scheme that's been incorporated into the regulations - and under CMS, [19] to oversee this massive program - by the will of any individual [for a] political, ideological, or whatever reason would be chaotic. It is just unworkable." [17]



Legal outlook

At this point the plaintiffs have the option to appeal the ruling to the Massachusetts Supreme Judicial Court. It isn't necessarily the case that the SJC would accept the case. Statistics for the state of Massachusetts weren't available, but other state supreme courts tend to accept fewer than 10% of appealed cases. [20]


It's possible that this defeat, which directly contradicts one of Peter Adler's legal theories, might cause the attorney to reassess the validity of other theories he has proposed. If nothing else, this ruling should cause others, who may have eagerly accepted Adler's word as authoritative, to pause and consider that his legal theories are not as valid and prescient as they have been led to believe.



UPDATE: On July 26, 2022 Ronald Goldman announced his intention to appeal the case to the Massachusetts Supreme Judicial Court. [21]



RELATED

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[1] Ronald Goldman; "Taxpayers Sue Massachusetts Medicaid About Circumcisions"; Circumcision Resource Center; July 22, 2020

[2] Ronald Goldman; "Historic Legal Challenge to Medicaid Circumcision"; GoFundMe Ronald Goldman Fundraiser, viewed July 13, 2022

[3] Ibid, April 2, 2021 Update

[4] Goldman v HHS Secretary, Mass. App. Ct. 2021-P-0318 (2022)

[5] Peter W. Adler; "Is Circumcision Legal?"; Richmond Public Interest Law Review; 2012

[6] Peter W. Adler et al; "Is Circumcision a Fraud?"; Cornell Journal of Law and Public Policy; December 2020

[7] Peter W. Adler: "Circumcision is a Fraud and the Coming Legal Reckoning"; Kindle; January 14, 2022

[8] Peter W. Adler; "LEGAL EXPERT: 'Infant Circumcision is Child Abuse'"; Brother K YouTube channel (6:44-7:03); February 11, 2022

[9] Arthur Austin; "Footnote Skulduggery and Other Bad Habits"; University of Miami Law Review; March 1, 1990. "The expectation is that expanding the footnote turf at the expense of the text connotes thorough research and a dedication to scholarship. The practical result is that density and a high footnote count get articles published... Density, however, may cloak ploys of questionable ethical credibility. Is it, for example, acceptable to fill a page of strong cites from every jurisdiction when several references would suffice? Quality and judgment likewise may succumb to density as authors sneak in cites to vacuous and repetitive student notes, worthless commentary, and material of doubtful relevance... The conventional assumption is that authors carefully select and read the material that they cite; however, the addiction to density renders this reckoning at best dubious, and in reality, ridiculous. Frequent references to books and treatises could reflect scholarship, but are more likely to constitute blatant footnote padding and perhaps a form of plagiarism."

[10] In general a statute of limitations sets the maximum amount of time - from the date of an alleged offense - that a party in a dispute has to initiate legal proceedings. The Massachusetts statute of limitations for fraud is three years. The statute of limitations, however, doesn't begin on the date of the alleged fraud, but on the date that the victim became aware that it happened. "Under the discovery rule, the statute of limitations does not begin to run until the plaintiff discovers or with reasonable diligence should have discovered" the harm. Under Adler's theory of the discovery rule, the statute of limitations for a 50 year-old circumcised man would not begin on the date that the man became aware that he was circumcised (which could have been as early as childhood) but rather on the date that he read Adler's book, which told him that circumcision harmed him.

[11] Bonanno v Quiznos Franchise Co., 2009 WL 1068744 (D. Colo. 2009)

[12] Diane B. Kraft; The Perils of Hyperbole”; Bench & Bar; May 2011

[13] Goldman v HHS Secretary; Appellants' and Cross-Appellees' Brief for Ronald Goldman & 27 Other Taxpayers; August 24, 2021

[14] Adler even cited his own 2011 article as proof that the 38 states covering elective circumcisions under Medicaid are violating federal and state medicaid law. Peter W Adler; "Is it lawful to use Medicaid to pay for circumcision?"; Journal of Law and Medicine; December 2011. Note: The complete article is included in the brief linked in the preceding footnote.

[15] Goldman v HHS Secretary; sur reply brief; February 15, 2022

[16] "The job of a judge is not to advocate for a cause. It is to view the law objectively." U.S. Senator Ted Cruz; Facebook post; July 13, 2022

[17] Goldman v HHS Secretary; Oral Arguments (audio clip)

[18] The attorneys split their allotted time, with lead counsel Adler taking 10 minutes and DeLaney just 5 minutes. They would have been better served if DeLaney had presented for the entire time period.

[19] The Centers for Medicare & Medicaid Services (CMS), an agency within the U.S. Department of Health & Human Services, administers the federal Medicare program and works in partnership with state government agencies, such as MassHealth, to administer the Medicaid program.

[20] For example: during a recent 6-month period, the Ohio Supreme Court accepted just 6.73% of civil discretionary appeals. Terry Posey & Cara Brack; "The data behind jurisdictional case acceptance"; Ohio Appellate Insights; March 10, 2022

[21] Goldman; "Historic Legal Challenge" n July 26, 2022 Update.



#Massachusetts #Medicaid #MassHealth #MedicaidFraud #DiscoveryRule #RonaldGoldman #PeterAdler #AndrewDeLaney #Circumcision #Fraud #Lawsuit

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