Press Release: Temporary Restraining Order Protects Immigrant Children




The Legal Aid Society won a ruling tonight in the United States District Court for the Southern District of New York (SDNY) against the Federal government that will help ensure that young Legal Aid clients and the parents they were separated from are provided detailed information by the government about their reunification plans, and are afforded an opportunity to consult with their parents and lawyers to explore asylum and other forms of relief.

On Sunday and Monday, Legal Aid attorneys learned of the Federal government’s imminent plans to transfer two young clients to Port Isabel Detention Center, a facility in Los Fresnos, Texas that is not licensed to care for children, and several other children to undisclosed locations around the country.

 Legal Aid attorneys argued that these transfers without notice undermine the ability of their clients to assert claims for humanitarian relief such as asylum, putting the children at risk of immediate repatriation to their home countries where they may face persecution. Without notice, the children also potentially lose the chance to assert their rights under a landmark settlement agreement in Flores v Lynch, a case that set standards for the treatment of minors in Federal immigration custody. 

Legal Aid clients who were set for imminent transfer will now be afforded the opportunity to assess their claims and defenses before relocation. Relocation is stayed by the Order until Thursday, July 19, 2017 at 10:00 am.  

“The Federal government has an unequivocal moral and legal duty to inform these children of what lies ahead including exact information on their transfer location; where their parents currently reside; and if a transfer is for the purpose of release, detention, or deportation,” said Adriene Holder, Attorney-In-Charge of the Civil Practice at The Legal Aid Society. “This information is crucial for our clients – many young children who already suffered enough trauma – to make informed decisions about pursuing asylum or other forms of relief. We laud the Court for rendering a sensible decision, one  consistent with law and morality.” 

Press Release: We Sued The Federal Government On Behalf Of Immigrant Children

Legal Aid Brings Emergency Lawsuit Against Federal Government Over Policy That Effectively Denies Migrant Children In NYS The Ability To Apply For Asylum And Other Humanitarian Relief




The Legal Aid Society filed a class action lawsuit late on July 16 in the United States District Court for the Southern District of New York (SDNY) against the Federal government on behalf of migrant children who were separated from their parents by the Trump administration and detained in New York State. The lawsuit seeks to ensure that the children are made aware of their reunification plan and are afforded an opportunity to consult with their parents and lawyers to explore asylum and other forms of relief.

On Sunday, Legal Aid attorneys learned of the Federal government’s imminent plans to transfer two young clients to Port Isabel Detention Center, a facility unlicensed to care for children in Los Fresnos, Texas, and nine other children to undisclosed locations around the country.

These transfers lack sufficient notice and erode genuine opportunities for children to assert their rights under Flores, a landmark decision from the U.S. District Court for the Central District of California that set national benchmarks on the treatment of minors in Federal immigration custody. The lack of notice also effectively prevents the children from remaining in the United States and avoiding trauma and persecution in their home countries.

“In reality, the Federal government plans to transfer these children to abhorrent facilities far away from legal counsel, mental health resources, and other critical services,” said Adriene Holder, Attorney-In-Charge of the Civil Practice at The Legal Aid Society. “Each child must be afforded the opportunity to know the government’s plans and intentions, and the opportunity to consult with their attorneys and their parents on next steps. Our clients and others have already endured significant and irreparable life-changing trauma, and they should be afforded sufficient time to assess their options under the law.”

Specifically, the litigation seeks:

  • A 48 hour notification from the Federal government to attorneys representing migrant children in New York State that details each child’s specific plan for reunification; reunification location; whether the basis for renunciation is release, detention, or deportation; as well as information on the client’s parent(s) and their available contact information.

ABC 7: Wrongfully convicted man freed after 25 years in prison

Stepping out on Friday for Shawn Williams is something he has not been able to do for nearly 25 years. He is now a free man.

"It was like a rush and a big relief," Williams said.

Williams spend more than two decades in prison, wrongly convicted.

"The hardships I endured in prison...but it was a big relief to be reunited with my family," he said.

Making that happen is his attorney, Sam Hershey and the Legal Aid Society, who have worked tirelessly since his case came up for review in 2013.

"We believed from the beginning, based on record, we knew and from what we heard from our client, that he was innocent," said Hershey.

Williams says his good childhood friend was murdered, and he was framed for it.

The Brooklyn DA's conviction review unit suggested Williams' case be looked at again after questionable conduct by former detective Louis Scarcella surfaced including eliciting false statements in other murder cases.

"I certainly hope that other people who have been wrongly convicted get their day in court, and have their convictions vacated as our client was fortunate to have today," added Hershey.

In state Supreme Court, his conviction was vacated, and Williams was set free.

Now 44, Williams is seeing how many things have changed, but he has a large supportive family to help him.

"It's going to take me some time to make that transition back into society. I did twenty something years in prison. Wow!" Williams says.

NY1 Noticias: ¿Qué ha sucedido con los niños y padres que fueron separados en la frontera?

Una decisión judicial obligó al gobierno federal a reunificar a las familias separadas cuando cruzaron la frontera. ¿Cómo lo están haciendo?

En Pura Política conversamos con Beatriz Díaz Taveras, directora ejecutiva de Servicios Comunitarios de Caridades Católicas, el abogado de inmigración Hasan Shafiqullah, de la organización The Legal Aid Society y Julio César García, reportero de NY1 Noticias.

WSJ: After Immigrant Families Are Reunited, Scars of Separation Remain


In the days after Ever Reyes Mejía was reunited with his 3-year-old son last Tuesday, the young father tried to make their lives seem normal again.

The two kicked around a soccer ball and played with toy cars while staying at a volunteer’s home in Detroit. Mr. Reyes Mejía wrapped his son in tight embraces, promising he would never be alone again.

Father and son were separated three months ago at a Texas migrant-detention center; the boy was sent to an agency in Michigan while Mr. Reyes Mejía was sent to another Texas facility.

Now, Mr. Reyes Mejía said, his son isn’t the same. He doesn’t speak much. He wants to be constantly close to his father and worries every time Mr. Reyes Mejía steps away.

“His personality has changed,” Mr. Reyes Mejía said. “Inside, he carries like a sadness.”

The Trump administration began separating families as part of its crackdown on illegal immigration. President Donald Trump ordered a halt to the practice after widespread outrage and a court ordered the administration to reunite more than 2,000 children with their families by the end of the month.

Families’ joy of reunification has come in some cases with the realization that the psychological effects of separation will take In testimony Thursday before the New York City Council, Jennifer Havens, director and chief of service for child and adolescent psychiatry at Manhattan’s Bellevue Hospital Center, said the separated children have experienced trauma, whether at home or in crossing the border and being separated from a parent.

In New York City, the roughly 300 separated children in the care of various social-services organizations have regular access to mental-health staff and city services that include bilingual child psychiatrists and a pediatric psychiatric emergency room.

Most of the children are resilient, Dr. Havens said, but there is a subset who have a significant disorder associated with the trauma of separation. Some show signs of major depression, which can lead to suicidal ideation or attempts.

One 6-year-old who had been separated from his family was so deeply traumatized that he might have appeared psychotic to a less-experienced mental health professional, Dr. Havens said. “But really what he was having was a flashback,” she said.

Some very young children appear confused or don’t recognize a parent upon reunifying, Dr. Havens said. Some of them had to attach to another caregiver.

“As I say, attachment is like air. You have to have it,” Dr. Havens said. “For parents to have to go through sort of reacclimating themselves to their children is just horrific.”

The Trump administration said it has reunited all eligible children under age 5 with their families—58 in all—out of more than 2,000 children separated from their families. Officials said 46 other young children weren’t immediately reunited because they were deemed ineligible—in some cases because the adults seeking to rejoin them posed safety concerns, including charges or convictions for child cruelty and domestic violence, according to U.S. officials.

After the government missed a court-imposed deadline on reunification of the younger children, the American Civil Liberties Union in court filings has called on it to establish a fund to pay for mental-health counseling for children “suffering from severe trauma as a result of their forcible separation from their parents.”

Hasan Shafiqullah, attorney-in-charge of the Immigration Law Unit for the Legal Aid Society of New York, said he has seen parent-child reunifications over the past few weeks that weren’t exuberant, running-into-arms moments for children who often appeared shellshocked and frightened.

“There’s a range of responses from parents, too, who are coming with their own trauma from the handling at the hands of the government, and a recognition that this is really the beginning of the next step in a long process,” Mr. Shafiqullah said.

For Silvia, a 25-year-old mother from Guatemala, reunification with her 3-year-old daughter Eyni went relatively smoothly. Silvia, who declined to give her last name, has been staying with her sister in Chatsworth, Ga., after being released from detention. On Wednesday night, two social workers flew Eyni down from New York City, where she had been in foster care since their June separation at the border in El Paso, Texas.

When the social workers handed over Eyni, the girl cried at first, but calmed down when she was in her mother’s arms. Inside the house, Silvia cuddled with her daughter on a couch, and soon she was giggling.

“We’re going to stay with your aunt,” Silvia told her daughter. “We’re going to be very happy.”

“That’s good, Mami,” the girl responded.

Silvia had worried about her daughter’s mental and physical health while separated, but she said she found the girl’s behavior normal. For now, she said, her fears have been put to rest.

Mr. Reyes Mejía, who awaits the next steps in his asylum case, said he worries about his son’s condition after enduring a long and unsettling ordeal. Soon after Mr. Reyes Mejía and his son turned themselves in to authorities at the border crossing in McAllen, Texas in April—claiming asylum because they were fleeing gang violence in Honduras—they were held in a detention facility.

Mr. Reyes Mejía said early one morning, while his son was sleeping, officials told him he needed to complete some paperwork. Only then was he told the two would be separated. He was transported to another detention facility before he could say goodbye to his son.

Throughout his detention, Mr. Reyes Mejía said he was unable to speak to his son.

On Saturday, Mr. Reyes Mejía and his son rejoined his wife and their 5-month-old daughter in Houston, after flying down from Detroit. Mother and daughter had crossed the border in May and were detained and released, but not separated.

With the family’s future in the U.S. still uncertain, they now are staying with a relative in Houston as their asylum claims are processed. Mr. Reyes Mejía said he endeavors to make his son feel safe and promises he’ll never have to go through such an awful journey again.

“He was alone and damaged,” he said. “I ask him to forgive me.” time to repair.

What’s Happening With the Separated Children in New York?

 Mark Abramson | The New York Times

Mark Abramson | The New York Times

The New York Times | What’s Happening With the Separated Children in New York?
By Liz Robbins
July 16, 2018

The children are on the move again. Months after hundreds of immigrant youth were separated from their parents at the southwestern border and sent to New York, some are now being sent back south to rejoin them.

But unlike the balloon-filled reunions that were taking place last week, these reunions are likely to be happening at federal detention centers. It is all part of the government’s effort to meet a court-ordered deadline of July 26 for all families to be reunited.

That is what activists and immigration lawyers wanted, but some still see red flags. “The government’s response to the court order to reunify children is to play a game of musical children,” said Eve Stotland, the legal director for The Door, a nonprofit representing a number of migrant children in New York.

Two legal developments on Monday added to the uncertainty. Dana M. Sabraw, the Federal District Court judge who set the July 26 deadline in a case brought by the American Civil Liberties Union, ordered a stay of deportations for families who had been reunited. This was to ensure that the government did not comply with the order by hastily deporting families.

In New York, Legal Aid filed a class-action lawsuit in federal court to demand the government give lawyers 48 hours notice before moving their clients, as opposed to the 12 hours mandated by Judge Sabraw.

Where will the children go?

As part of the federal plan released on Friday, the government said it would be returning 200 children a day to their parents. The parents would be moved to one of eight centers in the southwest, and the children would be moved there soon after.

Two boys from Guatemala, ages 5 and 12, were scheduled to be on their way — by airplane — to a detention center in Port Isabel, Tex., on Monday to be reunited with their mothers, according to the Legal Aid Society of New York. The lawyers received notice Monday that nine more children it represents in New York would be “discharged” within the next 48 hours, but it was unclear where they would be sent.

“It’s uncertain what these kids are being sent into,” said Beth Krause, the supervising lawyer for the Immigrant Youth Project at Legal Aid. “What the facility looks like, what services will be available, legal and social, and what rights that will stay with them and what will be stripped.”

Under what is known as the Flores agreement, children cannot be held in detention with their parents for longer than 20 days. They must be held in an accredited child care facility or be released to a sponsor. That was the government’s rationale for separating parents and children in the first place.

But parents can waive their children’s rights not to be detained beyond 20 days. This provision was one that the A.C.L.U. and government lawyers agreed upon to expedite reunions.

 Denis Rivas, 25, and his son, Joshua Rivas Chirino, 4, were reunited last week and then flew to North Carolina to join family there. Marian Carrasquero | The New York Times

Denis Rivas, 25, and his son, Joshua Rivas Chirino, 4, were reunited last week and then flew to North Carolina to join family there. Marian Carrasquero | The New York Times

The children could also be released with their parents who might be required to wear ankle bracelets while their immigration cases are pending.

Aren’t the reunions a good thing?

Yes, but lawyers and activists have some reservations. The children, whom the government designated as unaccompanied minors after separating them from their parents, have been in the custody of one agency, the Office of Refugee Resettlement. Thus, they are entitled to their own immigration hearings.

But if they are reunited with their parents and put into detention together, lawyers said, the children will be transferred to different custody — under the United States Immigration and Customs Enforcement agency — and be considered a family unit.

Lawyers for children in New York said they are deeply concerned that parents will have inadvertently signed away their children’s separate rights in the rush to be reunited. That could be important if, for example, a parent is willing to be deported back to a home country, but the child does not want to go. Ms. Krause, the lawyer for one of the Guatemalan boys flown to Texas, said her client, who is 12, wants to see his mother again, but he would not want to be deported with her because, “he is scared to go home; he has a viable asylum claim.”

It is possible that children will still be able to pursue their own claims.

According to Legal Aid’s Gregory Copeland, the A.C.L.U. lawsuit did not “adequately protect our clients,” which is why Legal Aid filed its own lawsuit in the Southern District of New York in Manhattan on Monday.

He said the Legal Aid lawsuit also formally asks the government to provide specifics on where the child would be sent and what the government intended to do with the child.

Have any reunions taken place in New York?

Yes, some. A number of children were reunited with parents arriving from other states last week, to meet a court-ordered deadline for children younger than 5. In addition, at least two other mothers rejoined their children, including Yeni González, who was reunited with her three children — ages 6, 9 and 11 — after being released from Eloy Detention Center and driven to New York by volunteers.

The federal government said last week that it had returned all “eligible” children under 5 to their parents, as Judge Sabraw had mandated. But it turned out that only 57 of 103 across the country were eligible, according to the government.

On Thursday at a City Council hearing, Mario Russell, the director of Immigration Services at Catholic Charities, said that only 12 of the 24 children under 5 years old in New York City were reunited with their parents. But officials and lawyers estimated on Monday that there had now been as many as 20 reunions with children under 5.

Bitta Mostofi, the Commissioner for Immigrant Affairs in New York, said that she was concerned about the children who remain in federal custody, and the city’s lack of information about them. She said the federal government still has not offered any details. “Their stonewalling and total lack of a reunification plan fails to help these children and our local efforts,” she said.

In recent interviews, lawyers said that at least three parents or guardians brought to the New York area to be reunified with children are still being held in an immigrant detention center outside of New York City and have not been reunified; they believe at least two have a child under 5.

Staff Highlight: Jasmina Chuck

Jas Chuck-LGBTQ unit II.JPG

As a native New Yorker, Jasmina Chuck knows how important the services provided by The Legal Aid Society are for our city. A paralegal in our LGBT Law and Policy Initiative, Jasmina works with clients across all five boroughs, trains staff in all three practices, and pushes to make New York a better place for all people by fighting for the most ignored and marginalized among us.

The LGBT Law and Policy Initiative works with clients, staff members, and partner organizations on a daily basis, juggling a number of initiatives to spread awareness and make an impact for LGBTQ+ New Yorkers. As a paralegal, Jasmina is deeply involved with every facet of the Initiative’s work, mostly importantly supporting the brave and invaluable class action litigation plaintiffs. Impact litigation makes a lasting difference by challenging the systemic injustices that members of the LGBTQ+ communities face every day. In recent years, Jasmina and the Initiative have focused on a group of New Yorkers that have long been overlooked: homeless youth. While over 40% of homeless youth in our city identify as LGBTQ+, these young New Yorkers lack essential support. But, things are looking better for these vulnerable youths. New York City just announced it will be opening its first shelter to assist LGBTQ+ homeless youth.

Alongside their work at the frontlines of our city’s legal reforms, Jasmina and the Initiative also focus on helping staff throughout the Society address the unique needs of LGBTQ+ clients. Through cultural humility trainings, Jasmina keeps our staff informed about the different issues members of the LGBTQ+ community are facing, helping each unit and program develop and further their inclusive and supportive practices. The Initiative’s educational outreach does not stop within the Society, though. In fact, as Jasmina explains, “we create a lot of resource materials” to share with our partner organizations and client communities. “It’s a mix of consultation, both internal and external.”

For Jasmina, the work of the LGBT Law and Policy Initiative is a unique look into the important impact of The Legal Aid Society. “Our work is always collaborative,” she states. “I’ve gotten to meet so many great people at Legal Aid.” But, it’s always more than just working together, it’s about making a difference in the lives of our clients. “We meet these people when they are at their most vulnerable,” Jasmina says, “and it is important that our staff is compassionate and affirming.” With her help, The Legal Aid Society can continue being there for New Yorkers in need.

Cleary Gottlieb and Legal Aid Win Vacatur of Scarcella-Related Murder Conviction for Pro Bono Client Shawn Williams

After five years of investigation and advocacy, lawyers from Cleary Gottlieb Steen & Hamilton LLP, in partnership with The Legal Aid Society, have successfully secured vacatur of the second-degree murder conviction of pro bono client Shawn Williams, who was wrongfully convicted for the 1993 shooting of Marvin Mason, for which he has served more than 20 years in prison. At a hearing in New York State Supreme Court, Justice Sharen D. Hudson granted a motion to vacate Mr. William’s conviction and dismiss the original indictment, and ordered his immediate release.

Cleary and The Legal Aid Society first became involved in Mr. Williams’s case in 2013 after it was referred by the Brooklyn District Attorney’s Conviction Review Unit (CRU). The CRU suggested the case be reviewed following several accounts of questionable conduct by the former detective who had investigated the case, Louis Scarcella, including eliciting false statements from witnesses in several Brooklyn murders.

No forensic evidence or motive had been introduced during Mr. Williams’s trial. The conviction rested solely upon testimony from a sole eyewitness, Ms. Smith, who claimed that she had seen Mr. Williams at the scene with a gun around the time of the killing, even though it was midnight and she was looking down from her sixth-story window, more than 100 feet away. Since his conviction in 1994, Mr. Williams has steadfastly maintained his innocence.

In 2013, the Cleary team began investigating, located and interviewed Ms. Smith, who then fully recanted her testimony, stating that she had been coerced into naming Mr. Williams by Mr. Scarcella. This new evidence was presented to the CRU in 2014 while the Cleary team continued its investigation.

The team also found alibi evidence placing Mr. Williams in Pennsylvania at the approximate time of the murder and secured expert testimony regarding the unreliability of the eyewitness testimony based on the witness’s vantage point on the night of the murder. This additional evidence was presented to the CRU, but, in January 2017, after continued inaction, Cleary and The Legal Aid Society filed a 440 motion in New York State Supreme Court to vacate Mr. Williams’s conviction based on the new evidence and moved for an evidentiary hearing. The DA’s office opposed this motion.

For more than a year, while its motion has been pending, the Cleary team continually updated the court on new cases that supported the motion and petitioned the DA’s office to drop its opposition. Finally, on June 15, 2018, the Brooklyn DA’s office filed a letter with the court indicating it would join Cleary’s motion to vacate Mr. Williams’s conviction, leading the court to grant the motion to vacate and dismiss the indictment on July 13, 2018.

“While Mr. Williams can never have his years of wrongful incarceration returned to him, we hope that he and his family can find some measure of peace in this vindication,” said Cleary partner Victor Hou. “I could not be more proud of the extraordinary dedication and commitment to justice demonstrated by the members of our pro bono team who worked tirelessly over the course of five years to correct this manifest injustice.”

“It’s truly unconscionable that Mr. Williams spent 25 years in prison for a crime that he did not commit because of shoddy and unreliable police work,” said David Loftis, Attorney-In-Charge of the Post-Conviction and Forensic Litigation Unit at The Legal Aid Society. “While we celebrate Mr. Williams’s release today, our hearts still ache for our client because nothing can fully right this tragic wrongful conviction and erase decades of needless incarceration. We urge the Brooklyn District Attorney’s Office to continue to zealously review retired detective Louis Scarcella’s work to correct other gross miscarriages of justice.”

The Cleary team was led by partner Victor Hou and included current associates Samuel Hershey, Lindsey Simmons, and Margi Schierberl, and former associates David Oliwenstein and Nicholas Karasimas.

The Legal Aid Society legal team was led by Post-Conviction and Forensic Litigation Unit Chief David Loftis, and included attorneys David Crow and Richard Joselson.


Daily News: Rats, bugs, leaks come with apartments in two Brooklyn buildings run by affordable housing group, say tenants


Residents of two Bushwick, Brooklyn, apartment buildings overseen by an affordable-housing nonprofit have long battled rodent and bug infestations because property managers have failed to fix ongoing problems, court papers charge.

Tenants of 676 Willoughby Ave. and 150 Tompkins Ave. are pursuing two separate Brooklyn Housing Court petitions, claiming squalid conditions in their buildings. Hearings in the cases are scheduled for Aug. 2 and July 16.

The companies targeted in the lawsuits are Willoughby Tompkins LP. and Aikens Apts.

Northeast Brooklyn Housing Development Corp. — which, according to its website, pushes for the “preservation, development and management of affordable housing” — is listed as the “managing agent” of these properties in city records.

Gabriel Pacheco and Jeffery Dunston, listed in city records and court papers as officers of these properties, are also being sued. Dunston is referred to as CEO and an officer of the housing corporation on the organization’s website. Northeast Brooklyn is not named as a defendant in tenants’ petitions.

The Legal Aid Society is representing the tenants of both buildings.

Eight residents of 676 Willoughby say the 21-unit building is also rife with leaks, including sewage, it has poor garbage disposal and lax security.

Seven tenants of 150 Willoughby make similar allegations about the conditions of their 20-unit building.

According to Housing Preservation and Development, which monitors conditions in buildings with rent stabilized apartments, the Willoughby and Tompkins sites have 198 open violations and 99 open violations at press time, respectively.

Claudia Harris, 32, claims when she first moved in with her father on Willoughby Ave. seven years ago, conditions were “fair” — but have since declined.

“I had to adopt a cat, because I had a rat the size of a size-13 sneaker in my apartment,” she said. “It came to the point I would not come out of the bedroom when it was dark.”

“I would barricade myself in my room – I was scared,” said Harris, who has a 3-year-old son.

After buying the cat around when her son was born, rodents have stayed away from inside her apartment.

But because “they don’t upkeep with the garbage,” they appear near the waste area, she said.

A persistent leak in the bathroom of her three-bedroom apartment, for which she and her father pay $1,500 per month, “smells like old urine.”

There’s a hole in the ceiling that has long gone without repair, Harris also said.

“I just feel like, when we put in for things to be repaired, we shouldn’t have to call 311,” she said. “Who wants to live like that?”

“My client is doing the very best job they possibly can under the circumstances,” said Seth Denenberg, who represents the properties, Pacheco, Dunston and the developer, Northeast Brooklyn.

Denenberg claimed tenants in these buildings weren’t providing access for repairs — and that Legal Aid wasn’t helping by pursuing litigation.

“We are run by a not-for-profit whose only goal is to maintain, create and improve housing in the Northeast Brooklyn area for people on limited and fixed incomes,” he said. “And we would love to see Legal Aid work with us instead of fighting against us.”

Legal Aid lawyer Meghan Walsh, who is leading the tenants’ lawsuits, said, “We strongly dispute those allegations.”

“The landlord has missed many access dates, usually with little to no response as to why,” Walsh said. “The tenants’ associations in both buildings are, understandably, very frustrated. We have been continuously working with NEBHDCO, through their attorney… and the progress has been very slow.”

Asked for comment, an HPD spokesman said the agency “has been actively involved at these properties, and will continue to support tenants in housing court and use all of the tools at our disposal to hold landlords accountable to ensure that tenants live in safe and secure homes.”

NYS Mandates Medicaid Health Plans To Provide Coverage To Transgender, Gender Non-Conforming New Yorkers

The Legal Aid Society, Willkie Farr & Gallagher LLP, and the Sylvia Rivera Law Project today lauded guidelines promulgated by the New York State Department of Health (NYSDOH) that address a variety of ways in which Medicaid Managed Care plans have been arbitrarily denying care to transgender and gender non-conforming Medicaid beneficiaries for the treatment of gender dysphoria. These guidelines clearly state that treatment for gender dysphoria must be provided to people of all genders, including those with non-binary gender identities.

“We are pleased to see the State reaffirming that access to gender affirming care must be for all people who seek treatment for gender dysphoria regardless of gender identity, and that beneficiaries must be protected from arbitrary administrative burdens that are not required by state regulation,” said Heidi Bramson, Staff Attorney with the Health Law Unit at The Legal Aid Society.

“We applaud the State’s issuance of guidelines designed to both ensure that Medicaid managed care plans honor Medicaid-eligible New Yorkers’ right to coverage of gender-affirming healthcare and respect a treating physician’s judgment that gender-affirming care is medically necessary,” said Wesley Powell, partner at Willkie Farr & Gallagher LLP.

"It will be a relief to so many New Yorkers that there are now stronger guidelines curbing the often humiliating and degrading practices that insurance companies have been subjecting transgender and gender non-conforming people to over the past few years. We are grateful to all the transgender and gender non-conforming people who have reported these practices and helped us to push for needed change,” said Mik Kinkead, Staff Attorney at the Sylvia Rivera Law Project.

Importantly plans must accept a treating physician’s determination that the gender affirming care requested is medically necessary. Plans may impose administrative prior authorization requirements but must accept the treating provider’s assessment. More so, when a provider makes this determination, plans cannot require enrollees submit photographs in order to document the need for treatment. Such a requirement often led to the plan replacing a doctor’s treatment recommendation with that of the plan’s own arbitrary determination of what was best for an enrollee.

More so, decisions on prior authorization for treatment must be made as fast as the enrollee’s condition requires. Before making an adverse determination, the plan must make at least one attempt to consult with the treating provider, and at least one of the plan’s clinical staff involved in the adverse determination must have expertise in the treatment of gender dysphoria.

Some of the items addressed in the guidance will serve to reduce arbitrary administrative demands that served to deny qualifying individuals medically necessary care. The guidance clarified that plans cannot require that enrollees have at least 12 months of continuous mental health counseling prior to surgery, but instead must be dependent on the client’s clinical profile, clarifying that this duration may be shorter as appropriate. Similarly, plans cannot require a year of hormone therapy prior to all procedures, and can only require hormone therapy if it is consistent with the enrollee’s gender goals, clinically appropriate, and recommended by the treating provider.

Two letters from qualified medical providers must attest to the enrollee’s need for the requested care. The guidelines now clarify that these letters must be viewed in tandem, and that each individual letter does not have to address all of the requirements for coverage; plans cannot require that the two qualified professionals submitting letters must work for different organizations; and plans cannot require time limits for the submission of clinical documentation that have the effect of delaying access to care (e.g. having clinical letters “expire” after 60 days, often requiring enrollees to make additional unnecessary trips to physicians who might be hours away or have long waits for appointments).

The state will now require that plans who want to adopt criteria for the authorization of gender dysphoria treatment must submit those criteria to DOH for approval.

“For far too long transgender and gender non-binary people have been denied access to gender affirming care due to arbitrary insurance rules that go against best clinical practice. The new Medicaid guidance sends a powerful message that healthcare plans must follow well-accepted standards of care and allow trans and gender non-binary people to access medically necessary care that aligns with their individual goals,” said Asa Radix, MD, MPH, FACP, Senior Director for Research and Education at Callen-Lorde Community Health Center.