by T. Christian Miller

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In 2020, Congress passed the No Surprises Act to protect patients from exorbitant medical bills that had burdened Americans with tens of thousands of dollars in debt. The law was designed to decrease the charges for patients treated by an out-of-network doctor during medical emergencies. Such ER visits often left people vulnerable to so-called surprise bills, in which their insurer would only pay a portion of the expensive treatment.

One of the biggest health care reforms since Obamacare, the No Surprises Act appears to have worked in one important sense. Patients have reported fewer crippling bills. Although little hard data exists, an insurance industry survey found that consumers avoided some 10 million surprise bills in the first nine months of 2023. A think tank report also suggests that people are paying less for the care they receive in the ER and other medical situations covered by the law, such as air ambulance trips.

But a cumbersome government system to resolve payment disputes between doctors and insurers now threatens to undermine the law’s promise, according to interviews with industry players, recent data analyses and government documents.

One potential outcome: higher insurance premiums for everyone.

Another: fewer physicians available to treat rural populations.

Doctors said that insurance companies have been abusing the system to lower payments, stiff medical practices and kick physicians out of their networks.

“I’m trying to think of a polite word to describe the experience, but it has been just chaotic and inefficient,” said Dr. Andrea Brault, the head of the Emergency Department Practice Management Association, a physicians’ trade group. “It’s a costly, lengthy process.”

Insurers, however, charged that big physician groups — some of them owned by private equity investors — are trying to manipulate the process to squeeze out higher payments. “A small but significant number of bad actors” have flooded the system with cases “as a way to maximize revenue,” said Kelly Parsons, a spokesperson for the Blue Cross Blue Shield Association. “Should this trend continue, health care costs are likely to rise unnecessarily.”

An official at the Centers for Medicare & Medicaid Services said the rising number of disputes was a byproduct of the law’s success.

“The No Surprises Act is protecting millions of patients from surprise medical bills when they experience an emergency or get care from an out-of-network provider at an in-network facility,” said Jeff Wu, the deputy director of policy of CMS’ Center for Consumer Information and Insurance Oversight. “The incredibly large volume of disputes submitted since the law’s surprise billing protections became effective demonstrates the need for this law.”

For decades, private insurance customers had to worry about receiving giant bills from using out-of-network doctors, who typically charge more for services. This was especially true when they had to go to an emergency room, where people have little ability to choose which doctor or hospital to treat them. The No Surprises Act aimed to fix the problem by protecting ER patients so that they would get billed essentially the same as if they received care from in-network physicians and hospitals.

The law radically changed the dynamics of billing disputes. “Before the No Surprises Act, you had doctors and physicians fighting, with patients stuck in the middle. Now you just have doctors and insurers fighting,” said Zack Cooper, a professor of public health and economics at Yale whose research helped shape the law.

Under the law, out-of-network doctors or hospitals invoice insurers, which counter with their own offer. Some 80% of claims are resolved this way, according to the survey conducted by the insurance trade groups.

But when the two sides can’t agree, they go to battle in a system created by the CMS and other government agencies. There, an independent arbiter weighs various factors and determines the final payment amount. This arbitration is at the heart of many of the law’s unintended consequences.

Originally, the government estimated there would be about 17,000 cases a year. But in 2023, almost 680,000 were filed, according to data released in June. The result is an enormous backlog that has slowed payments to doctors, hospitals and medical groups. Decisions are supposed to take 30 days. Since 2022, however, more than half of the cases remain unresolved. Some have lasted more than nine months. Wu said that arbiters have “scaled up their operations” to reduce the delays.

In addition, the law has been challenged repeatedly in court — health care provider associations and air ambulance groups have filed nearly 20 lawsuits involving the No Surprises Act, according to legal experts at the O’Neill Institute for National and Global Health Law. Two cases have overturned the initial CMS guidelines governing the arbitration. The agency has been forced to make numerous adjustments to the process that have contributed to the long delays.

The most heated debate over the dispute system surrounds the payment and enforcement of arbiters’ decisions.

Federal health officials at first thought that the law would help lower the cost of medical care. Instead, arbiters have awarded higher amounts to doctors and other providers than expected — potentially driving up insurance premiums.

“The most likely outcome is that this law doesn’t save consumers on net and potentially pushes in the opposite direction,” said Loren Adler, a researcher at the Center on Health Policy at Brookings, which issued a recent study on the possibility.

While the amounts are higher than expected, they remain lower than what doctors’ groups have billed. Doctors charge that insurance companies are submitting artificially low payment amounts. As proof, they point to data from June that shows arbiters rule in favor of doctors the vast majority of the time.

Still, overall, providers have seen nearly a 40% decrease in reimbursements since the law took effect in 2022, according to a recent survey by the emergency physicians trade group. At least one doctors’ group, Envision Healthcare, mentioned the No Surprises Act as one of the reasons it filed for bankruptcy. (The company has since emerged from court oversight.)

If revenue decreases continue, some doctors’ groups may have to cut back on services. This would most likely be felt in rural hospitals, which often operate with thin profit margins and already have difficulty recruiting ER doctors. “This is threatening to the sustainability of many, many practices,” said Randy Pilgrim, the enterprise chief medical officer for SCP Health, which provides doctors to emergency rooms across the country. “There have been few practices in the over 30 states where we operate that haven’t been affected by this.”

Doctors have also said that insurance companies are making late or incomplete payments after decisions by the arbiter. Complaints to CMS have been ignored, doctors said. Wu, the CMS official, said the agency actively investigates complaints under its jurisdiction.

It is also not clear whether courts can force an insurance company to pay. Pilgrim said his company had submitted almost 75,000 letters to insurance companies pleading for reimbursements after winning an arbitration decision.

“There’s very little teeth” in the process, he said. “You just continue to plead your case and hope you get somewhere.”

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by Jessica Lussenhop

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Last month, former President Donald Trump announced he would not pursue a federal abortion ban, as many of his supporters hoped, and he criticized states with bans that make no exception for rape or incest.

Gov. Kristi Noem of South Dakota, who at the time was on a short list of candidates to become Trump’s pick for vice president, responded immediately. Even though her state’s ban has neither exception and is considered one of the strictest in the country, Noem highlighted the parts of Trump’s message that she agreed with and sidestepped the rest.

“.@realDonaldTrump is exactly right… this is about ‘precious babies.’ It should be easier for moms, dads, and families to have babies — not harder,” she wrote on X following Trump’s announcement. “South Dakota is proud to stand for LIFE and support babies, moms, and families.”

But some state lawmakers, health care advocates and political observers in South Dakota say that Noem does not always follow through on that rhetorical promise. Since she became the first female governor of South Dakota in 2019, she has rejected programs and millions of dollars in federal funds that would have benefited pregnant people, parents and children — policies that might be at odds with her vision of limited government.

That Noem doesn’t always follow through on her talk is an oft-repeated criticism, said Jon Schaff, a political science professor at Northern State University in Aberdeen, South Dakota, who put it another way: Noem, he said, is “all hat and no cattle.”

“You look like a cowboy, but you’re not one,” Schaff said of the well-worn phrase. “I think there’s been a sense that she’s maybe overly concerned about sort of the imagery of politics rather than the substance.”

Much of that criticism has been eclipsed by the fallout from Noem’s memoir, “No Going Back,” in which she provides an account of shooting and killing a pet hunting dog called Cricket two decades ago. Still, Noem has pitched herself as a governor, rancher and mom passionate about family values and a second Trump presidency. For his part, Trump has not yet publicly eliminated her as a potential running mate, so her record on taking “care of moms and their babies both before birth and after” bears examination.

Noem’s office declined to comment, saying responses from state agencies were sufficient. But her record does, in fact, include measures that support families. In 2020, she helped create the first paid family leave policy for state employees, and she expanded it last year from eight to 12 weeks. She extended the length of time that people in prison can spend with their newborns in a “mother-infant program” from 1 month to 30 months. And she expanded a program called Bright Start, which pairs nurses with first-time parents, to cover the entire state with a $2.5 million budget increase.

In a statement, a spokesperson for the South Dakota Department of Health wrote that Noem is “committed to freedom for life” and pointed to a recently launched mobile health clinic called Wellness on Wheels, which provides services to rural communities such as connections with federal Women, Infants and Children benefits and pregnancy risk assessments. Over half the state counties are defined as a maternal care desert.

“DOH programs like Bright Start, Wellness on Wheels, WIC, pregnancy care and many more support this initiative in ensuring our future generations are healthy and strong,” the statement said.

At times, Noem has tried to put distance between herself and the state’s abortion ban, which was put in place by a trigger law that was passed before she took office. The ban only allows the procedure to “preserve the life of the pregnant female.” But she has not embraced opportunities to add exceptions to the ban’s language, even after calls to do so from within her own party.

Three female Republican lawmakers attempted to enact legislation to add “risk of death or of a substantial and irreversible physical impairment of … major bodily functions” to the permissible circumstances for an abortion. Rep. Taylor Rehfeldt, Sen. Sydney Davis and Sen. Erin Tobin — all registered nurses who identify as pro-life — met several times with Noem staffers as they tried to build support for the measure, and they believed they had Noem’s support. But as opposition emerged from anti-abortion advocates, principally South Dakota Right to Life, Noem did not help. Rehfeldt withdrew the bill.

“I never got an official statement from her office,” Rehfeldt said. “But I will tell you that there was consensus, and then all of a sudden there wasn’t.”

In the next legislative session, Rehfeldt brought a new bill that mandated that the Department of Health and the state attorney general create an educational video intended to clarify — but not change — the ban’s language; Noem signed that one in March. Susan B. Anthony Pro-Life America released a statement thanking Noem “for making South Dakota the first state to protect women’s lives with a Med Ed law.”

Maternal and infant health outcomes are particularly alarming in the state’s Native American population. About 44% of all pregnancy-associated deaths from 2012 to 2021 were Native Americans and Alaska Natives. In 2023, more than 3% of all Native American babies born in South Dakota had syphilis, part of an unprecedented modern outbreak.

One component of the problem is the chronically underfunded Indian Health Service hospitals and clinics, which are overseen by the federal government. If South Dakota expanded eligibility for its Medicaid program, as 39 other states and the District of Columbia have done, it would infuse IHS facilities with badly needed additional money from newly covered patients.

“That may be like a job position for a new doctor or salary for a dentist,” said Janelle Cantrell, head of the Medicaid and health care exchange enrollment program at Great Plains Tribal Leaders’ Health Board in Rapid City, South Dakota.

But Noem has opposed and delayed expansion. In 2022, South Dakota voters took the decision out of her hands by approving a ballot initiative for Medicaid expansion. According to state Rep. Linda Duba, a Democrat, Noem has dragged her feet on the expansion, which has resulted in far fewer residents enrolling than expected. At the same time, Noem supports adding a work requirement to Medicaid eligibility, which is popular among GOP governors.

“There’s nothing proactive going on,” Duba said. “That comes from the administration. They didn’t want Medicaid expansion. They’re doing everything they can to slow-walk it and keep the enrollments down.”

Department of Social Services Cabinet Secretary Matt Althoff said in a statement that Medicaid expansion enrollment is going “efficiently and smoothly,” and that he expects a monthly average of 40,000 enrollees a month in the next fiscal year. He pointed to the state’s low unemployment rate and rising per capita personal income as an explanation for below-expected enrollment.

South Dakota has no state-funded preschool program. Noem’s administration declined to apply for $7.5 million in federal money to pay for a free summer meal program for low-income children, something several GOP governors have also done. She also helped defeat proposals to pay for school lunches for eligible students and once called subsidized child care a “line in the sand” she wouldn’t cross.

“I just don’t think it’s the government’s job to pay or to raise people’s children for them,” she said in a radio interview in December 2023.

Some of Noem’s own initiatives have fallen flat. A pledge to eliminate the state’s 4.5% grocery tax, a full sales tax on all food items that only South Dakota and Mississippi charge, was a cornerstone of her 2022 reelection campaign. Repealing the tax, she said, would help “single moms who may rent an apartment and have a tough time feeding their kids with the rising food costs that we have.”

But the bill to repeal the tax failed to pass one of its first committee hearings, despite the Legislature’s Republican supermajority.

“It is amazing to me how much of a national profile that Kristi Noem has, in some ways not being all that successful in terms of achieving legislative agendas,” said state Sen. Reynold F. Nesiba, a Democrat and the chamber’s minority leader.

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by Anna Maria Barry-Jester

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It was 2022 when pediatrician Tom Herr realized just how many babies on the Rosebud reservation in South Dakota were already infected with syphilis when they took their first breaths. He was seeing more and more patients who’d spent their first weeks in a tangle of tubes that pumped antibiotics into their tiny bodies. Some had died in the womb.

With growing alarm, Herr and other health officials spread the word, appealing to bosses at the federal Indian Health Service and tribal health authorities, writing op-eds and talking to reporters. But as the months ticked by, the crisis mounted.

By 2023, an astonishing 3% of all Native American babies born in South Dakota were infected.

Now, according to tribal leaders, the syphilis rate among American Indians and Alaska Natives in the Great Plains surpasses any recorded rate in the United States since 1941, when it was discovered that penicillin could treat the infection.

On a map of rising syphilis cases nationwide, some reservations stand out like a red alert.

Desperate for help, in late February of this year tribal leaders from four Great Plains states took the extreme step of asking U.S. Department of Health and Human Services Secretary Xavier Becerra to declare a public health emergency. The Great Plains Tribal Leaders’ Health Board asked the secretary to deploy commissioned officers from the U.S. Public Health Service to help diagnose and treat people for syphilis, and to provide emergency funding for the tribes to improve their response capabilities.

More than 10 weeks later, Becerra has not responded.

“We need to free up resources so we can take extraordinary measures to respond to these extraordinary circumstances,” said Meghan Curry O’Connell, chief public health officer for the tribal health board.

Syphilis, which is transmitted primarily through sexual intercourse, is easily treatable. But the disease is life-threatening when left unchecked. Babies infected in the womb can be born in excruciating pain, with deformed bones, brain damage or other serious complications. They can even die.

The emergency declaration may be the only way to get money in time to prevent more babies from getting sick or dying. The typical funding processes — which go through the federal budget or the Centers for Disease Control and Prevention — can lead to a delay of a year or more before money trickles down to communities.

In response to questions from ProPublica about why Becerra hasn’t replied to the emergency request, an HHS spokesperson wrote that “HHS has received the request and will respond directly” to the Great Plains tribes, but did not provide a time frame for doing so.

ProPublica also sent questions about the outbreak to Dr. Natalie Holt, chief medical officer for the Indian Health Service’s Great Plains office. In response, IHS provided written answers from both Holt and HHS.

The rise of syphilis cases among Native American communities, particularly in some Great Plains states, is “especially concerning,” Holt said. She said that Great Plains IHS is working with the South Dakota Department of Health and tribal partners to “maximize syphilis case identification, contract tracing and treatment efforts.”

HHS wrote that it was “taking action to slow the spread with a focus on those most significantly impacted,” noting that it had held a workshop for tribes and created a national task force to “leverage federal resources.” It also pointed to guidelines IHS had released in October 2023 about how to respond to the outbreak.

Syphilis has been on the rise nationwide for a decade, and the country has repeatedly run low on penicillin, the medicine used to cure it. But amid a shortage of health care providers and money the disease was spreading faster on reservations.

Because syphilis is treatable and can be so devastating to a baby, even one case of an infected infant is a sign that a health system is failing.

Alarms about health care in the area have been ringing for years, in large part due to neglect from various arms of the federal government, including chronic underfunding from Congress for the health care system for Native Americans.

Now, the silence from HHS is threatening to perpetuate what health workers say is a preventable outbreak that endangers the lives of children.

“The more you delay, the harder it is to contain. More people infected, more infant deaths,” O’Connell said.

The U.S. government is obligated to provide health care to many tribes, including several in the Great Plains, under a variety of treaties. It does so largely through the Indian Health Service, a series of clinics and hospitals on reservations and in cities primarily in the western United States.

Unlike other major health programs like Medicare, IHS funding is determined by a congressional vote each year. It has always fallen far short of the $50 billion tribes say is needed. The IHS spends a little over one-third of what the Veterans Health Administration spends per patient and half of what the government spends on health care for federal prisoners, according to the most recent data available.

When infectious diseases inevitably arrive, as they do in every community, the Indian Health Service is often ill equipped to respond, according to current and former employees. Those existing shortfalls have made the syphilis outbreak even more challenging.

Holt, the chief medical officer at IHS Great Plains, wrote, “Public health initiatives are chronically underfunded.” Responding to infectious diseases requires “substantial ‘boots-on-the-ground,’” she said, noting that the U.S. is experiencing a national health care staff shortage, including a dearth of nurses, providers and other support personnel.

At the end of 2020, HHS released a national strategic plan to tackle sexually transmitted infections, including syphilis. The report noted concerning rates of syphilis in Native American babies across the country, which by then were already three times higher than in the population as a whole. Officials set a goal to bring the rate down by more than 15% by 2025.

Instead, over the next two years, the rate of syphilis among Indigenous people in the Great Plains soared by 1,865%. Around 80% of the cases in South Dakota in recent years have been among Native people, who represent less than 10% of the state population.

At Rosebud, Herr started spending his weekends at work, poring over patient charts. He made a list, tracking those who had tested positive but gone untreated. He shared the list with colleagues and tried to figure out how to get people their penicillin.

“We just did this with COVID,” he thought. “We know what to do.”

Herr set up an alert in the electronic medical record system to flag patients who needed treatment. On the walls of reservation hospitals and clinics, staff hung colorful posters featuring pregnant bellies, encouraging people to get tested.

The more you delay, the harder it is to contain. More people infected, more infant deaths.

Nurses held a few testing events in the community, diagnosing several people. The tribal health board held testing events in Rapid City.

Other Native American reservations were struggling as well. Jessica Leston, then a director for the Northwest Portland Area Indian Health Board, was tracking infectious disease data throughout the West when she noticed a cluster of new syphilis cases at a reservation in Montana. In a community of under 10,000 people, a dozen patients had been diagnosed in one week. She alerted colleagues at Indian Health Service headquarters, and they learned that three of the cases were stillborn babies.

The Montana outbreak was detailed in the Indian Health Service’s budget justification to Congress last year. In 2023, the president’s budget proposal called for $9.3 billion for IHS, a modest increase from the previous year, with additional increases over the next decade. Congress approved $6.9 billion for the system that serves 2.6 million people.

“People always say we care about babies,” Leston said. “Now we aren’t even caring about babies.”

Last year, the tribal health board called in the CDC through a program that deploys the agency’s experts for one to three weeks during outbreaks. CDC staff concluded, as Vox reported last year, that there isn’t enough prenatal care in the area and that patients lack transportation to the few available clinics. CDC disease investigators provided care to 14 people during their visit, noting that all but one would have gone untreated without their help.

The CDC recommended that tribes test and treat people outside of clinics, transport patients to appointments and hire additional workers to find the sexual partners of those who’ve tested positive so that they can be treated as well. The officials also suggested the tribes consider the use of rapid tests, which can return results in time for a patient to be treated before they leave the clinic.

All of those suggestions are nearly impossible to implement, tribal health officials told ProPublica.

Prenatal care used to be more readily available at the Indian Health Service facilities across the Pine Ridge, Rosebud and Cheyenne River reservations, which span nearly 5 million acres, an area approximately the size of New Jersey.

Over the last two years, many staff left and weren’t replaced. Across the three reservations, only Pine Ridge had an obstetrician for much of the last year, according to several people with direct knowledge of the situation. Holt said that the IHS is working to hire more providers and that there is now an additional part-time obstetrician at Pine Ridge and another working two days a week at Cheyenne River.

People with any kind of pregnancy risk factor — including a patient over 34 and another with high blood pressure — have said they were told to drive up to three hours to Rapid City.

Tribal health officials lack the staff or money for mobile clinics and more testing events to find new cases.

They also struggle to track existing cases because three states and the Indian Health Service have refused to share contact information for patients who test positive. South Dakota recently began sharing this crucial information with the tribal health board, but the Indian Health Service and Iowa, North Dakota and Nebraska still do not. Health departments in Iowa, North Dakota and Nebraska did not respond to questions about data sharing.

As for the rapid tests, the Indian Health Service nationally recommends their use. But current and former staff in South Dakota said that area managers have denied their requests for these tests. Instead, providers said, they must use a test that has to be sent out to a lab and wait three to seven days for results. By that time, it can be hard to locate patients for treatment.

Holt said that the IHS “supports data sharing in the interest of improving population health” and that tribes must follow an established policy to request and receive the data. Regarding rapid tests, she wrote that the Great Plains IHS prefers to do the lab-based testing because “we feel this approach improves speedy access to treatment.”

The CDC also urged the tribes to research how punitive policies stop people from seeking medical care. In South Dakota and on several reservations, a pregnant person with illegal substances in their system can be charged with a felony. And providers are required to contact child protective services if they know a person has used drugs during pregnancy. Doctors described patients being screened for drug use at hospitals, with or without their consent, and then taken to jail. People in the area know this risk and sometimes avoid medical visits as a result, women and providers said.

The South Dakota tribes and state officials have shown no indication they are considering changing these policies.

Immediately after the CDC visit last summer, the tribes put in a formal request to the agency for more help. A few CDC staffers returned to the area in April to help find and treat patients who have tested positive. It’s an important step, O’Connell said. But given how far syphilis has reached into the community, a few days of help at few reservations is not enough to stop babies from dying.

The tribes also worry about the damage that’s already been done. In addition to asking for help preventing new infections, leaders asked for a longer-term plan to make sure that children born with syphilis get the care they need in years to come.

Herr remains haunted by one patient file from Rosebud. It belongs to a young woman who came to the hospital in labor and delivered a stillborn baby. A week later, when the patient was long gone, test results came back showing she had syphilis.

Hospital staff tried a few times to follow up to no avail. The woman returned to the hospital months later, this time in the midst of a miscarriage. Based on her medical records, Herr believes she lost both pregnancies due to untreated syphilis.

When Herr retired from IHS in January of this year, the woman still hadn’t been treated.

We plan to continue reporting on Native American health care and are looking for experts and sources. Help us make sure our journalism is responsible and focused on the right issues. We’d especially like to hear from tribal members about their experiences, along with employees of the Indian Health Service, and tribal leaders and elders. If this is you, please fill out the form below or reach out to reporter Anna Barry-Jester at anna.barryjester@propublica.org.

This post was originally published on Articles and Investigations – ProPublica.

by Aliyya Swaby

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After a federal appeals court ruled this week that transgender people are legally entitled to the same access to medically necessary health care as everyone else, the immediate reaction of the states of North Carolina and West Virginia was to vow to appeal the decision to the U.S. Supreme Court.

The immediate reaction of Hann Henson, an employee of a North Carolina school district who’d spent years struggling to access gender-affirming care, was to break into tears. Last year, ProPublica wrote about his tumultuous journey seeking medical support in his gender transition while living in a state with a long history of discrimination against transgender people.

“Having something that you know is going to help you feel better, is going to help you feel whole, and having it constantly dangled above your head is just dehumanizing,” he said.

The 4th U.S. Circuit Court of Appeals, based in Virginia, ruled that the two states violated federal law by banning coverage of certain treatments for transgender people but allowing it for others. These cases were the first of their kind to reach a federal appeals court and the decision could influence states and courts in other parts of the country.

For years, transgender people have argued in court that the North Carolina state employee health plan and West Virginia Medicaid program discriminated against them by refusing to cover certain treatments when they are prescribed for transgender people. The court’s majority agreed with this argument, in line with previous district court rulings, highlighting that West Virginia’s Medicaid program “covers mastectomies to treat cancer, but not to treat gender dysphoria.”

Henson found out about the lawsuit in 2022 soon after he started his job as a communications specialist for a North Carolina school district. He realized he was sprinting against a clock, with the state under a court order to cover gender-affirming care while the legal fight was underway. He scheduled what he hoped would be his last major surgery for November 2023, two months after the appeals court heard oral arguments on the case.

But as he got closer to the date, he realized he had to delay the surgery due to a stomach ulcer. He said the looming court decision was all he could think about for months. He even considered trying to go ahead with the procedure despite his poor health. He finally got the surgery in late March.

Dale Folwell, the state treasurer and a named defendant, used the lawsuit in his campaign for governor. (He lost the Republican primary in March.) He maintained in interviews and court documents that the state health plan should have the authority to determine which employee benefits are covered. He reiterated those comments in a statement this week: “Untethered to the reality of the Plan’s fiscal situation, the majority opinion opens the way for any dissatisfied individual to override the Plan’s reasoned and responsible decisions and drive the Plan towards collapse.”

Henson will need a follow-up surgery in five months, a common part of the process. He said he now feels a sense of relief knowing the appeals court decision ensures that he likely won’t lose access to his care at a critical time. But he worries about other transgender people seeking services and imagines them refreshing a court website compulsively just like he did.

For now, the ruling protects access to gender-affirming care for transgender people on both states’ health plans. The decision would apply to any federal court cases brought in other states in the 4th Circuit: South Carolina, Virginia and Maryland. The 11th Circuit is currently considering two similar cases out of Georgia and Florida.

All the active judges on the court heard oral arguments in the case in September. In their ruling Monday, eight of the 14, almost all of whom were appointed by Democratic presidents, ruled in favor of the transgender plaintiffs. “In addition to discriminating on the basis of gender identity, the exclusions discriminate on the basis of sex,” wrote Judge Roger Gregory, who was initially appointed by President Bill Clinton and confirmed under the George W. Bush administration.

The states argued that gender-affirming care cost too much and was medically ineffective, so they were justified in not covering it. The court’s majority opinion dismissed both arguments as lacking support. Evidence shows covering the care would likely cost states very little, and major medical associations support broad access to gender-affirming care, citing evidence that prohibiting it can harm transgender people’s mental and physical health.

The judges who signed the three dissenting opinions were all appointed by Republican presidents. “In the majority’s haste to champion plaintiffs’ cause, today’s result oversteps the bounds of the law,” Judge Julius Richardson, a President Donald Trump appointee, wrote in the principal dissent. “The majority asserts that the challenged exclusions use medical diagnosis as a proxy for transgender persons, despite the complete lack of evidence for this claim.”

North Carolina and West Virginia are planning to appeal the decision to the U.S. Supreme Court, according to press releases from each state. “We are confident in the merits of our case: that this is a flawed decision and states have wide discretion to determine what procedures their programs can cover based on cost and other concerns,” West Virginia Attorney General Patrick Morrisey said in a statement.

It remains to be seen how and whether other states and insurance companies with restrictive policies for covering gender-affirming care will act in response to the opinion.

“It should serve as a cautionary tale not just to states that implement state health plans and Medicaid programs but also to private insurers,” said Omar Gonzalez-Pagan with Lambda Legal, which represented the transgender plaintiffs in North Carolina and West Virginia. “I would hope that this serves as a determining factor in the adoption of any bad policies as an inspiration to get rid of policies that currently exist.”

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