November 8, 2022
As we reported last month, on October 13 the Massachusetts Supreme Judicial Court rejected an appeal to consider intactivist Ronald Goldman's lawsuit to stop MassHealth from using Medicaid funds to cover neonatal circumcisions. At the time we suggested that the legal defeat offered lead counsel Peter Adler the opportunity to reassess the validity of his legal theories about circumcision. It turns out we were overly optimistic; Adler hasn't learned a thing.
Last week on Goldman's GoFundMe page, Adler and Goldman reacted to the termination of the lawsuit. While avoiding criticism of the SJC, the authors focused their wrath on the Appeals Court for rejecting the lawsuit. They argued that the Court was wrong to determine that MassHealth has discretion to determine whether or not a service is medically necessary because "no discretion is needed to know that it is not medically necessary to operate on a healthy boy." 
That statement is clearly inaccurate. The plaintiffs had conceded that circumcision is medically necessary in certain circumstances.  Whether medical necessity applies to a particular procedure in general or with respect to a particular patient is a discretionary matter. The Court reasoned that if the taxpayers could sue to overturn MassHealth decisions on circumcision, another set of taxpayers could sue to stop Medicaid funding for other procedures performed on presumably healthy patients. The plaintiffs never provided the Court with a limiting principle that would prevent taxpayers from suing to stop Medicaid funding for mammograms or colonoscopies.
Adler and Goldman claimed that the Appeals Court incorrectly relied on appeals to authority in the form of statements by the American Academy of Pediatrics and other medical organizations. In fact courts often welcome and rely on authoritative experts to help explain complicated medical or scientific issues.
The defendants' brief stated that federal law requires MassHealth to cover "Physicians' services" and allows MassHealth to cover circumcision. The defendants responded that circumcision has an assigned service code and "neither the legislature, the Department of Public Health, nor the Board of Registration in Medicine has prohibited licensed physicians from performing" neonatal circumcisions. Moreover the plaintiffs had conceded that a majority of other states cover the procedure. The brief cited a U.S. Supreme Court case in which the Court precluded private citizens from challenging a state Medicaid program's compliance with federal law. 
The authors falsely claimed that as a result of the decision, Massachusetts taxpayers have no way to challenge coverage for a particular procedure. In actuality a valid avenue exists - via the legislative branch. The taxpayers could lobby a Massachusetts legislator to introduce a bill to restrict Medicaid funding for circumcisions.
Adler and Goldman made the misleading assertion that "18 U.S. states stopped using Medicaid to pay for circumcisions at birth."  As of 2013 just 17 states excluded newborn circumcision from Medicaid coverage.  Since 2014 four states have added or reinstated Medicaid coverage: Florida,  Missouri,  Colorado,  and North Carolina.  Therefore, as of this date 37 out of 50 states - 74% - cover neonatal circumcisions.
According to the authors a California court ruled that "it is harmful to needlessly go under the knife."  They didn't specify the case to which they were referring. At any rate California law cannot provide legal support to intactivists. In 2011 the California state legislature unanimously passed a law which declares that "male circumcision has a wide array of health and affiliative benefits." 
Finally, the authors employed the Peter Pan Fallacy when they stated that "boys are not at risk of adult diseases."  This fallacious reasoning assumes that a boy will never grow up. By the same logic one could dismiss intactivist claims that foreskin contains more than 20,000 highly erogenous nerve endings and is necessary for optimal sexual performance and pleasure - because babies and prepubescent boys do not engage in sexual activities.
 Ronald Goldman; "Historic Legal Challenge to Medicaid Circumcision"; GoFundMe Ronald Goldman Fundraiser, n November 4 2022 Update
 Goldman v HHS Secretary; Appellant Brief for Ronald Goldman & 27 Other Taxpayers; p 10. "Physicians in most countries only circumcise boys in rare instances of medical necessity."
 Goldman v HHS Secretary; Principal and Response Brief of the Appellee Secretary of the Executive Office of Health & Human Services; November 29, 2021.
 Prior to 2015 newborn circumcisions were covered by Medicaid in Clark County (Las Vegas) and Washoe County (Reno) - home to 88% of Nevadans. As of October 1, 2015 Medicaid covered circumcision for infants up to one year old throughout Nevada. Tammy Moffitt; "Medicaid Services Manual Changes Addendum"; Nevada Department of Health and Human Services - Division of Health Care Financing and Policy; September 29, 2015. p 73: "[603.4.a.2.c.4.] Medically necessary circumcision for males up to one year of age is a covered benefit. Males older than one year will require a prior authorization from the QIO-like vendor." p 86: "[603.4 Maternity Care - a.2.c.4.] Routine circumcision of a newborn male is a Medicaid benefit for males up to one year of age. For males older than one year of age, a prior authorization is required to support medical necessity." [strikethrough text redacted]
 Florida reinstated coverage in 2014. "Florida Managed Medical Assistance Program 2013-2014 Financial Annual Report", p. 13; Florida Agency for Health Care Administration. "The following is a list of the expanded services offered by the capitated Reform health plans of which the over-the-counter drug benefits and adult preventive benefits were the most frequently offered: ... Circumcisions for male newborns"
 Missouri reinstated coverage in 2014. Provider Bulletin; Missouri Department of Social Services; Volume 36, Number 31; June 12, 2014. "Effective June 15, 2014, MO HealthNet will pay for elective circumcisions for all newborn infants less than 28 days old using Current Procedural Terminology (CPT) codes 54150 and 54160.
 Colorado reinstated coverage in 2017. Provider Bulletin; Colorado Department of Health Care Policy & Financing; September 2017. "Beginning July 1, 2017, circumcision is a benefit of the Colorado Medicaid program. The following procedure codes are covered services and can be reimbursed: 54150, 54160 or 54161. There are no prior authorization requirements for this service."
 North Carolina reinstated coverage in 2021. "Clinical Policy 1A-22, Medically Necessary Circumcision Revised"; North Carolina Department of Health and Human Services; December 29, 2020. "Effective Jan. 1, 2021, providers billing for medically necessary circumcisions performed for the prevention of disease [including HIV] for newborn and non-newborn male beneficiaries should submit diagnosis Z29.8 (encounter of other specified prophylactic measures) and an appropriate circumcision procedure code."
 Assembly Bill No. 768 Male circumcision (2011-2012); California Legislative Information; Filed with Secretary of State October 2, 2011