For much of 2022, Florida agencies addressed gender-affirming care through active rulemaking. On November 4, 2022, the Florida Boards of Medicine and Osteopathic Medicine proposed conflicting rules regarding the standard of care for gender-affirming care for minors. This potentially historic split represents the first time that the Boards have come to substantive disagreement regarding the standard of care. The difference in the rules could have long-ranging implications for medical providers and patients.
Regulatory Background
The World Health Organization defines gender-affirming care in relevant part as “any single or combination of a number of social, psychological, behavioral or medical interventions designed to support and affirm an individual’s gender identity.”[1] The various interventions are intended to assist transgender people in conforming their lives with their gender identity. Gender-affirming care can include hormone therapy, puberty blockers, and surgical intervention.
As of 2022, Florida was one of 15 states that considered legal action to restrict access to gender-affirming care. Florida’s measures have largely focused on the standard of care for medical providers and how (or if) providing gender-affirming care, particularly to minors, falls within the standard.
In April 2022, the Florida Department of Health (DOH) published guidance called “Treatment of Gender Dysphoria for Children and Adolescents,” which recommended against providing gender-affirming care to these patient populations and emphasized that gender transition “should not be a treatment option for children or adolescents.”[2]
A few months later, in June 2022, Florida’s Agency for Health Care Administration (AHCA), which oversees a variety of programs, including Florida Medicaid, published a report that stated gender-affirming care is not supported by sufficient evidence, is not consistent with the standard of care, and has the potential for harm to patients.[3] As of August 21, 2022, under Rule 59G-1.050, Florida Administrative Code, Florida Medicaid will not cover treatment for gender dysphoria, including: puberty blockers, hormones and hormone antagonists; sex reassignment surgeries; and any other procedures that alter primary or secondary sexual characteristics.[4] The Medicaid rule was challenged in federal court, but on October 12, 2022, the court denied a preliminary injunction against enforcement.[5]
Board Rules
Florida physicians are regulated in part by two separate boards. Medical Doctors (MDs) are governed by the Florida Board of Medicine. Doctors of Osteopathy (DOs) are regulated by the Florida Board of Osteopathic Medicine. Although historically there have been distinctions between the degrees, in modern practice, the physicians are functionally equivalent. Traditionally, MDs focused on allopathic medicine and treating specific conditions, while DOs focused on osteopathy and a whole-body approach. Today, the requirements for each degree are largely in line with each other and each physician type is generally held to the same standard of care.
On November 4, 2022, the Florida Boards of Medicine and Osteopathic Medicine held a joint meeting where they addressed rulemaking to cover the standard of care and the treatment of gender dysphoria.[6] The Boards both agreed to update the standard of care rules to reflect that performing gender-affirming surgery or providing puberty blockers or hormones to minors violates the standard of care. The Boards considered a possible exception to the gender-affirming care ban. The exception would permit physicians to provide puberty blockers or hormones to minors who agreed to participate in certain limited, approved clinical trials. The Board of Medicine declined to accept the exemption and voted in favor of an outright ban. [7] The Board of Osteopathic Medicine voted to allow the clinical trial exception.[8]
The rules are not yet final and are still in the early stages of Florida’s rulemaking process. As with Florida’s Medicaid rules, challenges to the rules are also possible. The difference in the standard of care has not been reconciled and it is unclear whether or not the Boards will again address the issue.
Implications
Should the proposed rules become final, there would be a split in the standard of care for MDs and DOs. While the split arguably has a very narrow application, it could signal that the Boards will not necessarily act in congruence when considering future standard of care issues. Such differences would make it more important for patients to understand which type of provider they are treating with as it could change the care that is available to them.
Differences in the standard of care, even in a narrow area, could have unexpected impacts on patient care. For example, a greater portion of DOs practice in primary care than MDs. If a minor were to receive hormone therapy from their primary care provider, a DO, have a subsequent negative reaction, and then go to a hospital where they are seen by an MD, the standard of care rules could change the patient’s treatment options, based on how the MD is legally allowed to treat that patient. The differences in treatment open up new areas of legal ambiguity, particularly as it relates to scope of practice or questions of liability.
From a practical perspective, if the trend of differences in the standard of care continues, then health care attorneys will need to increase their awareness of their client’s specific licenses and tailor their advice to the physician’s degree type. Different types of physicians may need to have different treatment policies. There may also be implications for medical malpractice actions, including changing theories of liability according to the type of physician who treated the plaintiff.
On a broader scale, if other states’ medical boards were to follow Florida’s lead and take internally conflicting approaches, this could lead to both state-specific issues and the same questions and issues on a national scale. Health care attorneys should be aware that such differences could signal an increased political interest in the legalities of medicine and a possible uptick in legislation and rulemaking, so they should carefully monitor changes to the scope of practice and standard of care in their states.
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About the Author
Amanda J. Newlon is an attorney at Trenam Law in Tampa, FL. She concentrates her practice in health care law. She can be reached at anewlon@trenam.com.
- [1] World Health Organization, Frequently Asked Questions, Gender incongruence and transgender health in the ICD, https://www.who.int/standards/classifications/frequently-asked-questions/gender-incongruence-and-transgender-health-in-the-icd.
- [2] Florida Department of Health, Treatment of Gender Dysphoria for Children and Adolescents (Apr. 20, 2022), https://www.floridahealth.gov/_documents/newsroom/press-releases/2022/04/20220420-gender-dysphoria-guidance.pdf.
- [3] AHCA, Florida Medicaid: Generally Accepted Professional Medical Standards Determination on the Treatment of Gender Dysphoria (June 2022), https://ahca.myflorida.com/letkidsbekids/docs/AHCA_GAPMS_June_2022_Report.pdf.
- [4] Fla. Admin. Code r. 59G-1.050, https://www.flrules.org/gateway/ruleno.asp?id=59G-1.050.
- [5] Arek Sarkissian, Federal judge upholds Florida Medicaid ban on covering gender-affirming care, Politico, Oct. 12, 2022, https://www.politico.com/news/2022/10/12/florida-medicaid-ban-transgender-treatments-00061500.
- [6] Florida Boards of Medicine and Osteopathic Medicine Joint Board Meeting, Agenda, Nov. 4, 2022, https://ww10.doh.state.fl.us/pub/medicine/Agenda_Info/Public_Information/Agendas/2022/November/11042022_JointFB_Agenda.pdf.
- [7] Fla. Admin. Code r. 64B8-9.019 (proposed), https://www.flrules.org/gateway/RuleNo.asp?id=64B8-9.019.
- [8] Fla. Admin. Code r. 64B15-14.014 (proposed), https://www.flrules.org/gateway/ruleNo.asp?id=64B15-14.014.
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