Tim Hammond – GALDEF Founder and President
Recently, there have been rumors in some intactivist circles that the Medicaid program in California (Medi-Cal) had reinstated coverage for newborn circumcision. Earlier this year, a supporter contacted us after seeing Intact America’s December 8, 2022 posts on Facebook and Twitter declaring “California Extends Medicaid Coverage for Newborn Circumcision!” We are pleased to report after investigating the matter that California has not reinstated Medicaid coverage for newborn circumcision.
Those posts were apparently generated by a December 2, 2022 news release (#22-985) from a single HMO, California Health and Wellness (CHW), about a recent change to extend its window of coverage for circumcision from 28 days to 30 days after birth.
GALDEF looked into this further with the help of Ryan Jones, a researcher and board consultant, who contacted the California Department of Health Care Services (DHCS) for answers about the December 2nd CHW news release. DHCS responded as follows:
“Medi-Cal has not changed its policy regard (sic) newborn circumcision. As noted in the Provider Manual for non-benefits, CPT codes 54150 and 54160 are non-benefits, but may be available for medical necessity with prior authorization. The article you referenced was published by a managed care plan, California Health & Wellness.While managed care plans must cover all fee-for-service benefits, they have the option of covering beyond those provided in fee-for-service.”
Ryan followed up on the DHCS response by asking “When managed care providers such as California Health & Wellness go beyond what’s covered in fee-for-service, and cover procedures that would otherwise require a medical justification, like CPT 54150 and 54160, are the funds used by such a provider supplied by Medicaid?” This was the DHCS response:
“DHCS pays managed care plans a monthly capitated rate to provide covered Medi-Cal services to beneficiaries. The plans then work with providers on payment for services. Please note that capitated rates are based upon covered services.”
It’s likely that individual plans like California Health & Wellness may be including coverage for newborn circumcision, not from funds they receive from the DHCS Medi-Cal program, but from premiums charged to plan members, which of course includes parents.
In addition to Ryan’s inquiry, I checked with Kevin Knauss, an intactivist-minded insurance broker in Sacramento, for more clarification about California Medi-Cal and circumcision. I also asked him, in light of the recent setback with the Massachusetts Medicaid legal challenge, whether it would still be worthwhile for citizens to lobby their state legislatures to de-list Medicaid coverage for non-therapeutic newborn circumcision.
And here I want to digress a moment to explain the Massachusetts case. GALDEF Vice President Mat Goodwin and I conducted a video interview on December 3, 2022 with attorney Peter Adler. As Peter revealed, the first judge in the Massachusetts Superior Court ruled in favor of the arguments put forth by the attorneys for the Plaintiffs, citizen Ronald Goldman and other taxpayers in the state, and agreed that the Plaintiffs had made a credible claim that it is unnecessary to circumcise a newborn boy; that it is unlawful under Massachusetts regulations for physicians and hospitals to bill Medicaid for unnecessary medical services; and that taxpayers have standing to challenge the Massachusetts Medicaid agency when it acts unlawfully. In fact, in order to get paid, physicians are fraudulently claiming on the Medicaid form that it is necessary to circumcise newborn boys, when there is no need to do so. Given the importance of the matter, the judge referred the case to the Massachusetts Appeals Court to determine whether he had decided the matter correctly.
Unfortunately, the Appeals Court overturned the judge’s lower court decision and dismissed the Plaintiffs’ lawsuit. The three judge panel at the Appeals Court reasoned that no court in Massachusetts had ever allowed a taxpayer lawsuit to challenge an agency’s administration of a benefits program. We believe this reasoning is erroneous (that courts had never addressed the matter). The Appeals Court questioned whether the Plaintiffs had a sufficient interest in the matter to have standing to bring suit. That reasoning fails, as the Massachusetts statute expressly states that taxpayers can sue when a state agency acts unlawfully. The Appeals Court then reasoned that Massachusetts Medicaid has discretion to decide which “medical care and services” to cover, including circumcision. So the Appeals Court seems to have viewed circumcision as medicine and deferred to doctors.
The Plaintiffs then appealed to the Supreme Judicial Court of Massachusetts. Unfortunately that court chose not to hear the case.
In short, we believe that the Superior Court decided the case correctly and that the Appeals Court got it wrong. The Appeals Court decision ended the litigation in Massachusetts, but it remains to be determined whether future litigation in another state would determine if the (Massachusetts) Superior Court or the Appeals Court got the matter right.
It’s important to note here that some public and private health insurance companies have a broad interpretation about what constitutes “medical necessity.” This can include whatever the “standard of care (SOC)” is in any given location. SOC means that if all or most of the doctors in a specific hospital or a local area are performing newborn circumcision without a verified medical indication, then that can be broadly interpreted as meeting the definition of “medical necessity.”
Returning to the matter of Medicaid coverage in California, our insurance broker ally Kevin responded to my inquiry as follows (emphasis mine).
“Each (state) regulates its own health insurance plans. Where not expressly directed by the federal government, states are free to restrict or add benefits. Your assessment of lobbying each state is probably most appropriate.
As DHCS replied, Medi-Cal does not reimburse for circumcision unless it is medically necessary. Cal Health & Wellness is an HMO health plan that serves Medi-Cal beneficiaries. They are paid a monthly capitation amount for each enrolled member to handle all of the claims and assume all of the risk of the enrolled members. It was a little odd that they clarified an extra 2 day length, from 28 to 30 days, in which they would cover circumcision. I’m not sure what prompted such a minor change in the language unless someone challenged it. I’m not sure how they account for claims and the capitation amount, or if that is even done.
The Medi-Cal HMO plans receive a set dollar amount per enrolled member regardless of age. They must provide all of the mandated health and drug benefits. They can provide other benefits that are not mandated. I don’t think DHCS has a policy prohibiting paying for circumcision, they just say they won’t reimburse for it. DHCS won’t reimburse for many cosmetic procedures, but that does not prohibit the health plan from offering them.”
At this point, it’s interesting to note that even the pro-circumcision website Circumcision Choice looked into this matter and came to the same conclusion as we did in its December 22, 2022 post titled Did California resume Medicaid coverage for circumcision? They posted links to Intact America’s December 8th social media posts mentioned earlier and they did their own fact checking with California DHCS. Circumcision Choice determined that “Medi-Cal has not changed its policy regarding newborn circumcision,” stating further:“We conclude that Medi-Cal does not cover elective newborn circumcision at this time.”
The post by Circumcision Choice also revealed that “There are approximately 29 Medi-Cal Managed Care Health Plan options. Medi-Cal recipients covered by a managed care plan should check with their provider to ascertain the circumstances under which a circumcision procedure would be covered.”
After following their very useful link to those plans, I spent considerable time searching for the websites and contact details for each plan and provided them to Ryan Jones, who is now in the process of contacting each of those plan providers to ask which ones cover newborn circumcision.
To summarize, it remains unlawful for physicians and hospitals to bill the California Medicaid program for circumcisions at birth and for other non-therapeutic circumcisions later in childhood. What changed is that one specific HMO plan, California Health & Wellness, extended the window of coverage by two days, from 28 days after birth to 30 days. It remains to be seen whether all 29 Medi-Cal Managed Health Care plans do or do not offer similar coverage. Even if they do, they are likely not reimbursed for it by the California Medi-Cal program. Newborn circumcision remains a non-covered “benefit” under the California Medi-Cal system.
This does not mean that citizens concerned about children’s genital autonomy should rest easy. At this time, there may still be two possible paths forward with regard to health insurance paying for newborn circumcision in various states.
Children’s advocates should consider resurrecting a coordinated effort similar to that employed by Amber Craig in North Carolina and others during the 1990s. They successfully lobbied their state legislatures to demand that Medicaid not use public tax dollars to pay for medically unnecessary newborn circumcision.
Another project to consider is similar to that done by NOHARMM supporters in 1994. Subscribers to private health insurance plans wrote their insurers to ask whether newborn circumcision is a covered benefit (or they simply looked through their Member Handbook for covered benefits). Many insurers responded by acknowledging that they know that newborn circumcision is a social custom and not medically necessary. Today’s activists can contact their insurer (Member Services Department) to learn whether the insurer pays for newborn circumcision, and if they do, you can express your serious concern by letter or email that your premiums are being used to pay for medically unnecessary genital surgery on unconsenting children and threaten to switch to another carrier who doesn’t pay for it. If enough plan members engage in this “consumer revolt,” it could be effective with some insurers to modify their coverage.
And if the insurer responds with a reference to the AAP’s 2012 circumcision policy to support its coverage for newborn circumcision, you can inform them that the 2012 policy automatically expired in 2017 without being renewed.
So don’t give up hope. There’s always a way forward in the struggle for children’s rights. For GALDEF’s part, we will continue to monitor the political and legal landscape for opportunities to hold state Medicaid programs accountable that pay for medically unnecessary surgery. We will always strive to earn your faith and trust in us to find creative ways to bring impact litigation to halt the practice of childhood male genital cutting. We count on your donations to help us fund such research and litigation and I invite you to visit our Ways to Give page today to make your one-time or recurring gift.