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Plaintiffs’ Opposition to Defendants’ Motion For Protective Order (document 117)

Summary

 

Key players

  • Florida Agency for Health Care Administration (AHCA): Florida’s Medicaid agency and the defendant in this case. AHCA produced the anti-trans June 2, 2022 GAPMS reports as part of a predetermined effort to exclude coverage of gender-affirming care
  • Jason C. Weida: Former assistant deputy secretary for the AHCA, promoted to chief of staff and then to secretary.
  • Dr. Quentin L. Van Meter: Expert witness for the defense, frequently serves as an anti-trans witness in court and public hearings nationally and internationally. President of the American College of Pediatricians and member of the Catholic Medical Association.
  • Dr. Andre Van Mol: Member of the American College of Pediatricians and the Christian Medical & Dental Associations. Van Mol is a professor in bioethics at Bethel School of Supernatural Ministry (charismatic/Pentecostal); the Bethel Church of Redding has also supported the ex-gay “CHANGED Movement”.

Documents

  • 117 – Plaintiffs’ Opposition to Defendants’ Motion For Protective Order
    • 117-1 – Affidavit Declaration of Omar Gonzalez-Pagan
    • 117-2 – Exhibit 1. Deposition of Defendants designated expert Quentin Van Meter, M.D.
    • 117-3 – Exhibit 2. AHCA Organizational Chart
    • 117-4 – Exhibit 3. Deposition of Defendants Rule 30(b)(6) witness Matthew Brackett
    • 117-5 – Exhibit 4. June 14, 2022 email from Andre Van Mol to Jason Weida
    • 117-6 – Exhibit 5. April 2022 email thread between Jason Weida, Andre Van Mol, and Michelle Cretella
    • 117-7 – Exhibit 6. May 9, 2022 email from Quentin Van Meter to Jason Weida
    • 117-8 – Exhibit 7. May 14, 2022 email from Quentin Van Meter to Jason Weida
    • 117-9 – Exhibit 8. May 10, 2022 email from G. Kevin Donovan to Jason Weida and Andrew Sheeran
    • 117-10 – Exhibit 9. April 2022 email thread between Jason Weida, Andrew Sheeran, and Romina Brignardello Petersen
    • 117-11 – Exhibit 10. May 2022 email thread between Jason Weida, James Cantor, and others
    • 117-12 – Exhibit 11. May 13, 2022 email from Patrick Lappert to Jason Weida
    • 117-13 – Exhibit 12. Text thread between Andre Van Mol and Jason Weida
    • 117-14 – Exhibit 13. June 2022 email thread between Jason Weida, Ema Syrulnik, and Andrew Sheeran
    • 117-15 – Exhibit 14. May 6, 2022 email from Andre Van Mol to Jason Weida
    • 117-16 – Exhibit 15. May 2022 email thread between Jason Weida and Miriam Grossman
    • 117-17 – Exhibit 16. May 10, 2022 email exchange between Jason Weida and Miriam Grossman
    • 117-18 – Exhibit 17. July 20, 2022 email from Andre Van Mol to Jason Weida and Quentin Van Meter
    • 117-19 – Exhibit 18. April 28, 2022 email from Ashley Peterson to Jason Weida
    • 117-20 – Exhibit 19. April 29, 2022 email from Jason to Ashley Peterson
    • 117-21 – Exhibit 20. June 3, 2022 email from Ashley Peterson to Jason Weida and Ann Dalton
    • 117-22 – Exhibit 21. May 12, 2022 email from LeKieva Campbell to Jason Weida and others
    • 117-23 – Exhibit 22. Defendant AHCAs March 1, 2023 responses to Plaintiffs written questions
    • 117-24 – Exhibit 23. March 8, 2022 emails from Joe Little re Plaintiffs’ Notice of Deposition of Jason Weida
    • 117-25 – Exhibit 24. March 8, 2022 email thread between Omar Gonzalez-Pagan, Mohammad Jazil, and Joe Little
    • 117-26 – Exhibit 25. Transcript of hearing on Plaintiffs Motion to Compel

Notes

Plaintiffs’ Opposition to Defendants’ Motion For Protective Order (117)

Plaintiffs argue against AHCA’s attempt to shield Jason C. Weida from deposition using the apex doctrine

Page 1:

…his now being an agency head is irrelevant while Plaintiffs seek to only depose him about his involvement in the underlying events preceding his appointment. Defendants cannot promote a highly salient witness out of sitting for a deposition.

Page 2:

Moreover, testimony elicited and documents produced in this litigation now clearly indicate that Mr. Weida had perhaps the most prominent role in ACHA’s promulgation of Fla. Admin. Code R. 59G-1.035(7)(a) (the “Challenged Exclusion”). Mr. Weida personally chose who would serve as consultants for AHCA’s June 2, 2022 report that concluded that gender-affirming care was investigational (the “GAPMS Report”) and the rule hearing on July 8, 2022. He had many private conversations with these consultants (and perhaps others) where he shaped the contents of their reports and where they appear to have influenced AHCA’s approach to prohibiting gender-affirming care through Medicaid. Indeed, one of AHCA’s consultants described Mr. Weida as his “primary contact for th[e] report.” (Ex. 1, 153:23-154:3.) Within AHCA, Mr. Weida was the face of the antitransgender push, controlling the organization’s messaging.

Page 5:

For one, Defendants cannot argue that “Plaintiffs could have attempted to depose were Cody Farrill (who was then the Agency’s Chief of Staff), Tom Wallace (who was and continues to be a Deputy Secretary for the Agency),” but then also argue that Mr. Weida is shielded under the apex doctrine for the same or lesser roles. For another, “[t]he apex doctrine protects only a limited category of government official—those at the ‘apex.’” Florida v. United States, No. 3:21CV1066/TKW/ZCB, 2022 WL 4021934, at *2 (N.D. Fla. Sept. 2, 2022).

… At the relevant time here, Mr. Weida was the Assistant Deputy Secretary for Medicaid Policy and Quality. In that role, he purportedly reported to the Deputy Secretary for Medicaid Policy, Quality, and Operations, who in turn reported to the Secretary for AHCA. (Ex. 2.) The fact that there were layers between Mr. Weida and the AHCA Secretary shows that he was not sufficiently high ranking to be covered by the apex doctrine. Florida, 2022 WL 4021934, at *2. In fact, both Tom Wallace and Cody Farrill, who Defendants suggest as alternatives, report directly to the AHCA Secretary and are therefore closer to the pinnacle of the agency than Mr. Weida was during the time in question.

Page 9:

The weight of the evidence indicates that Mr. Weida personally oversaw much of the GAPMS Process. Perhaps most importantly, Mr. Weida appears to have personally selected the GAPMS consultants and served as the consultants’ primary contact. For example, Matthew Brackett, as the agency’s 30(b)(6) witness, testified that the decision to contract with the consultants to prepare their reports was made solely by Mr. Weida and that the determination that the consultants had the appropriate backgrounds to write the reports was made by Mr. Weida and General Counsel Tamayo. (Ex. 3, at 129:1-14.) In fact, consultant Andre Van Mol, M.D. seems to have shared Mr. Brackett’s belief given that Dr. Van Mol reached out directly to Mr. Weida asking to bring on yet another anti-transgender expert. (Ex. 4.) Dr. Van Mol himself was referred to Mr. Weida by Michelle Cretella, M.D., who Mr. Weida apparently tried to recruit at the beginning of the GAPMS Process. (Ex. 5.)

Beyond selecting the consultants, Secretary Mr. Weida appears to have been personally responsible for wrangling in the consultants’ reports and even determining some aspects of their contents. (Id. [Andre Van Mol, M.D.: “Once I know what information you need, I can fairly promptly assemble supporting citations.”]; Exs. 6 – 7 [Quentin Van Meter, M.D.: “Does this cover some of what you need from me?”; “I wanted to be sure this is the direction you wanted me to go with the document.”]; Ex. 8 [G. Kevin Donovan, M.D.: “I hope it meets your needs.”]; Ex. 9 [Romina Brignardello-Petersen, Ph.D. asks Mr. Weida if she can limit the scope of her report given time constraints, to which Mr. Weida responds by asking for a private call]; Ex. 10 [James Cantor, Ph.D. and Mr. Weida appear to have a phone call to discuss report revisions]; Ex. 11 [Patrick Lappert, M.D.].) For example, Dr. Van Meter testified that Mr. Weida was the “primary contact” for his report, and it was Mr. Weida who instructed Dr. Van Meter “to write a report … to make criticisms of some of the most standard defenses for using medical, social and surgical affirmation in minors.” (Ex. 1, 136:7-17, 153:23-154:2.) Mr. Weida was also who provided Dr. Van Meter with feedback “about the language of [his] report.” (Id. at 140:10-15.)

Moreover, Mr. Weida participated in private conversations with consultants that appeared to guide the GAPMS Process and the Challenged Exclusion’s promulgation. (Ex. 12 [Mr. Weida asks consultant Quentin Van Meter, M.D. for help finding anti-transgender advocates in advance of the July 8 rulemaking hearing]; Ex. 13 [Mr. Weida seeks to re-connect with non-retained consultant Ema Syrulnik regarding AHCA’s “next steps” following the GAPMS Report’s publication after having already met before its publication]; Ex. 14 [consultant Andre Van Mol, M.D. thanks Mr. Weida for a recent discussion and forwards to Mr. Weida several articles regarding “Financing the [transgender] movement and its tactics”]; Ex. 15 [consultant Miriam Grossman, M.D. admits her lack of research qualifications and solicits Mr. Weida’s opinion as to how she can help, and Mr. Weida responds with suggestions]; Ex. 16 [Dr. Grossman asks Mr. Weida if he is interested in the “debate over informed consent,” but Mr. Weida instead asks her to opine on written materials he mailed her]; Ex. 17 [Dr. Van Mol discusses with Mr. Weida and Dr. Van Meter the Alliance Defending Freedom’s assessment of Dr. Stephen Levine’s testimony vis-à-vis Dr. Cantor’s testimony].)

When the Florida Surgeon General published anti-transgender guidance on April 20, 2022, Mr. Weida was invited to (and may have attended) an upcoming Drug Utilization Board meeting to field questions regarding gender dysphoria. (Ex. 18.) Around this same time, Mr. Weida was personally directing AHCA pharmaceutical staff how to respond to inquiries regarding gender-affirming care. (Ex. 19.) Next, the day after the June 2 GAPMS Report’s release, Mr. Weida appears to have attended a meeting with unspecified persons where an array of gender-affirming care procedures were discussed. (Ex. 20.) Moreover, Mr. Weida appears to have unilaterally decided not to send an entire plan transmittal regarding the implementation of the Challenged Exclusion even though the transmittal went through several rounds of drafting. (Ex. 3, at 214:25-215:9, 219:8-11.) Finally, Mr. Weida appears to have personally handled AHCA’s response to initial public records requests regarding gender dysphoria during the GAPMS Report’s preparation. (Ex. 21.)

Page 11:

As further evidence of Mr. Weida’s participation in AHCA’s efforts to withdraw coverage of gender-affirming care, the name “Mr. Weida” appears in 912 documents produced in this litigation that are dated between January 1, 2022 and August 21, 2022, the date of the Challenged Exclusion’s enactment. Within this timeframe, Mr. Weida appears as the author on 167 documents. (Gonzalez-Pagan Decl., ¶ 4.)

Page 16:

Testimony from Dr. Van Meter indicates that when he was given his task by Mr. Weida, the outcome of the GAPMS Report had already been decided. Ex. 1, 137:4-9. The evidence Plaintiffs seek from Mr. Weida is necessary to show that he devised a sham process with a predetermined outcome in order to exclude coverage of necessary health care services, and to establish his discriminatory intent.

Page 17:

While the discovery process has to date yielded several important documents and elicited valuable testimony, it has also pointed to critical information gaps related to Mr. Weida’s participation. As described above in Section II, the evidence suggests that Mr. Weida is perhaps the person at AHCA most responsible for the conduct of the GAPMS Process and AHCA’s turning a blind eye to reliable sources of information.

Page 18:

Now that expert depositions are complete, Plaintiffs have one remaining deposition available to them, that of Mr. Weida, which Plaintiffs noticed for March 10, 2023.

AHCA has provided three employees for depositions to date, none of whom have been either able or willing to speak in detail on Mr. Weida’s influence and its effect on the process. Notably, Defendants’ designated Rule 30(b)(6) witness Matthew Brackett was unable to give anything other than speculative responses regarding how Mr. Weida chose consultants and caused the GAPMS Report to be prepared. He testified that the decision to contract with the consultants to prepare their reports was made solely by Mr. Weida and that the determination that the consultants had the appropriate backgrounds to write the reports was made by Mr. Weida and General Counsel Tamayo. (Ex. 3, 129:1-14.)

Page 19:

In sum, Plaintiffs should not have to keep fishing for this information elsewhere when time is of the essence and a ten-deposition limit exists, especially when AHCA’s purportedly most knowledgeable witness testified that Mr. Weida has the answers to some of Plaintiffs’ questions.

Relatedly, Defendants now posit that Plaintiffs could obtain this same information from AHCA General Counsel Andrew Sheeran. Plaintiffs once sought to depose Mr. Sheeran with significant hesitation given the difficulties in deposing a lawyer who had given legal advice at certain points to a Defendant-client. Indeed, Defendants’ counsel responded by threatening to appeal any order compelling his deposition. (Gonzalez-Pagan Decl., ¶ 5.)

Page 21:

In fact, Defendants have already provided follow-up written responses to certain questions asked by Plaintiffs of the Rule 30(b)(6) witness Matthew Brackett during that deposition. Defendants’ follow-up responses were unavailing. For example, when asked who AHCA considered but did not ultimately select as a consultant, AHCA responded: “Agency staff engaged in verbal communications with individuals that were referred by Dr. Michelle Cretella and do not recall the names of those individuals that were consulted.” (Ex. 22, at 2.) Throughout this litigation, Plaintiffs attempts to elicit information from Defendants in writing has been largely futile, further justifying the need to depose Mr. Weida.

Declaration of Omar Gonzalez-Pagan (117-1)

Page 2:

While Plaintiffs’ counsel once sought to depose Defendant AHCA’s General Counsel Andrew Sheeran, Plaintiffs’ counsel ultimately ceased pursuing that deposition. Defendants’ counsel Mohammad Jazil communicated to me on February 17 and 21, 2023 that counsel would appeal any order compelling Mr. Sheeran’s deposition. As a result, the parties agreed that any should Plaintiffs insist on obtaining testimony from Mr. Sheeran, such testimony would be elicited through written questions and responses. Given the difficulties already involved with deposing a lawyer, the fact that responses to written questions would yield limited information with no opportunity for follow up, and the increasingly apparent nature of Jason Weida’s possession of superior, unique knowledge about many process-related issues, Plaintiffs determined that further pursuing written testimony from Mr. Sheeran would not be insufficient and ineffective.

Exhibit 1: Deposition of Dr. Quentin Van Meter on 17 Mar 2023 (117-2)

pp. 134-135:

Q So, you sent your CV and fee schedule on April 13, and I don’t have an email to you asking you for help before then. So, my question is how did you come in contact with the Agency for Healthcare Administration in Florida?

A I honestly don’t recall. I thought it was through email.

Q When were you officially retained as a consultant to the Agency for Healthcare Administration?

A I do not recall that either.

Q The email that we discussed was with Andrew Sheeran. Did you communicate with other people at AHCA? By AHCA I mean A-H-C-A, the Agency for Healthcare Administration?

A I believe I communicated with Mr. Weida, an attorney, and there may have been a second person whose name I do not recall.

Q And you communicated with Matthew Brackett?

A I do not recall.

pp. 136-137:

Q What was the conversation? What were you asked to do?

A I was asked to write a report of essentially the history of transgender health in the United States, the sort of progression of sort of the ideology as it rose to take prominence in the field of transgender health and to make criticisms of some of the most standard defenses for using medical, social and surgical affirmation in minors.

Q Who asked you to do that in your report?

A I believe it was Mr. Weida.

Q And at that point in time had a decision been made that coverage would no longer be provided?

A No, there was going to be a hearing in front of invited people that would be pro or con, the public comments and professional people’s comments, and I was invited to that hearing.

Q Understood, but at that point in time when you were given this task, there was a GAPMS report that was going to be issued, right, and your report was going to be in support of that, is that correct?

A That’s correct.

Q So, the outcome of the GAPMS report, was that already decided when you were asked to write your attachment?

A I believe it had a purpose of preventing funding for things that had not been based on scientific proof.

pp. 138-139:

Q Did you communicate between April 13 and August 21 with any counsel at the firm Holtzman and Vogel, and when I ask you this question, I’m very specific. I’m asking about communications up to August 21, 2022. I’m not asking about anything thereafter. Did you communicate with attorneys at Holtzman and Vogel?

A I do not recall when I did, but I can find that information from you with a review of my emails.

Q Did you communicate with Moha Jazil? Is that a name that comes to mind?

A Again, I don’t recall that name.

Q Did you communicate with Gary Perko?

A Yes, I did.

Q Did you communicate by phone with Gary Perko?

A Before the 23rd of August, again, I will have to find out when it was that I first was contacted, and it’s very likely that if I was contacted by email that I would have had some sort of telephonic communication with Mr. Perko.

Q Just for clarity of the record, I’m only asking you up to August 21st?

A Correct.

Q Did you ever speak with somebody at the Department of Health in relation to the GAPMS project?

A I do not recall any conversation.

Page 140:

Q From whom did you receive feedback on your report?

A The one most prevalent was I think Mr. Perko and maybe Mr. …

Q Did you receive — go ahead. Sorry.

A Actually this is before the 21st of August, is that correct?

Q Yes, I’m only asking before the 21st of August?

A I don’t recall specifically what kind of feedback I got. I got feedback about the language of my report, and I took that and edited it appropriately to clarify certain things that I had originally written. I do not recall the individual. It would likely have been Mr. Weida.

pp. 140-141:

Q This is an invitation for a Microsoft Team’s meeting, is that right?

A Yes.

Q It’s for May 2, 2022, is that right?

A That’s correct.

(Plaintiff’s Exhibit No. 17 was marked for identification.)

BY MR. GONZALEZ-PAGAN:

Q Subject Florida call and required FMV includes k-i-d-e-n-d-o @comcast.net. Is that right?

A That’s correct.

Q That’s your email, is that correct?

A That’s correct.

Q So, there was a meeting on May 2, 2022, is that right?

A Yes, that would indicate that, yes.

Q And the meeting included yourself, James Cantor, Patrick Lappert, Jason Weida and a number of other folks at AHCA, is that right?

A That’s what it says, yes.

Q What was discussed at this meeting on May 2, 2022?

A It was an instructional session on the purpose of the report, the design, who would be involved. It was a guidance of what things that should be included in the report and what should be not included in the report that would be somehow viewed as inflammatory or inappropriate. It served as just a guideline. This is what the report is. I believe it was a discussion of what the plan and the goal was overall. It was more instructive than interactive with the participants on the call.

pp. 150-152:

what the DeHaynie [Dhejne] study showed.

A One of the things it showed.

Q I guess I have a question for you. A, do you know what the rate of suicide would have been absent the care?

A I don’t.

Q So, it could have been higher, even higher?

A It could have been.

Q I think there’s an assumption built into your critique, and I just want to piece it out that it ignores that you are taking out people out of their context. Like just because somebody is receiving care doesn’t mean that they’re being taken out of their context in which let’s be real being transgender is not the most socially acceptable thing in the world?

A I’m not sure I understand your question or can verify that what you said is indeed valid.

Q I’m just saying that you’re comparing transgender people, the rate of suicide rate between transgender people versus the general population, and the stressors in life that transgender people face are just not the same as the general population?

A In the country of Sweden transgenderism and stigma for that is the lowest probably of anywhere in the world. There might still be some residual stigma. The society of in the country of Sweden at large, minority stress theory for them does not apply to any real extent.

Q What literature do you point to to say that minority stressors don’t apply in Sweden?

A I can’t tell you it doesn’t apply in every single case, but in general of anywhere in the world to live as a transgender person the society is reported and referenced in literature to be the most accepting society and country in the world.

Q Again, to what do you cite for that proposition?

A It’s mentioned in a number of referenced articles that are in support of or look critically at the issue of minority stress in transgender patients. It’s quoted again and again, and again I could find those references for you and provide them if you wish.

Q But that wasn’t included in your report, either of them?

A No.

Q Let me ask you this. Even if Sweden were — just an assumption. Let’s take it as true for purposes of the conversation that Sweden is the most accepting concentration of people in the world. That doesn’t mean that it is accepting of transgender people, right? It just means it’s more accepting than other places?

A I suppose you could say that, yes.

Q It doesn’t mean that there’s no discrimination against transgender people in Sweden?

A I have no reference that I can quote that says that that is not true.

pp. 152-153:

Q Let’s turn to the next exhibit, Exhibit 19. Can you see my screen?

A Yes, I can.

Q Is this an invoice like the ones that you were referring to earlier?

A Yes.

Q And it delineates a date of June 13, 2022; this is an invoice that you submitted, is that right?

A That’s correct.

(Plaintiff’s Exhibit No. 19 was marked for identification.)

BY MR. GONZALEZ-PAGAN:

Q It delineates that there was a teleconference with AHCA staff that was 45 minutes on May 1 and that you spent one hour writing the initial draft of your report on May 8. Is that all that you spent writing your report, one hour?

A That one day and then continued writing and rewriting the draft report on the subsequent, the 12th of May, the three and a half hours.

Q So, this is what I wanted to ask. Did you receive feedback between the 8th and the 12th, or this was just two days of …

A I believe I just worked on it on the 8th and the 12th and then sent it in for commentary.

Q That was that email that we saw of May 14th?

A Yes.

Q And then you received commentary, and you spent two and a half hours making revisions, is that right?

A And putting in the references and that revision of draft report writing references, that was the additional two and a half hours. That’s a really significant task to go back and look in the references to be sure that they match. There are mismatches that happen when you add a new reference, and the reference numbers in the thing may or may not change forward, and you will have double references or something that accidentally is a reference for another part of the topic that belongs to another part of the report but actually was not aligned, and I try to go through and make sure that does not happen. So, that happens before the final draft is turned in.

Page 154:

Q And it says that it was updated on July 26, 2022. Is that right?

A That’s what it says.

Q It states that you were part of a cabinet that reviewed the amendment to Rule 59G-1.050 general Medicaid policy. Do you see that?

A I do.

Q What was your role as part of the cabinet?

A I did not know I was part of a cabinet. So, I can’t describe that to you.

pp. 156-157:

Q. And in the middle of the page there’s an email that you sent on July 9, 2022, to Devona Pickle that is a bit of like an outline of an invoice if you will, is that right? A. That’s correct. Q. And it says that you spent two hours of phone conferences. What were those? Is that right, two hours of phone conferences? A. Two hours of phone conferences. (Plaintiff’s Exhibit No. 21 was marked for identification.) BY MR. GONZALEZ-PAGAN: Q. How many phone conferences were there? A. Essentially two, and they were nearly an hour long each one, more than 45 minutes and at least up to an hour. Q. What was discussed at those two one-hour phone conferences? A. I can’t recall specifically. Q. Who participated in those two one-hour phone conferences? A. Again, I cannot define. I know I obviously was there. I would assume that Mr. Weida was there, and beyond that I cannot tell you. I do not recall it being with any other individuals than just me and my report. Q. You don’t recall what was discussed with Mr. Weida on that phone conference? A. I remember some was about logistics, about arrangements that needed to be made for, you know, what time we should arrive or depart from Tallahassee, descriptions of how the hearing would very likely progress, those kinds of things among others, and then probably talked about my draft report. Q. You didn’t discuss logistics for two hours though, right? A. No, not two hours. You asked me everything I could remember. So, I’m just telling you what I remember. Q. No, no, I understand. I just want to make sure, but there’s stuff that you cannot remember that was discussed during those two hours? A. That’s correct.

Page 199:

Q. Just switching gears a tiny bit, do you recall Mr. Gonzales-Pagan asking you several questions earlier regarding that case you were struck from as an expert witness? A. Yes. Q. Is my understanding correct that the reasons you were struck from that case are under seal or otherwise confidential? A. Yes.

Exhibit 3: Deposition of Defendants’ Rule 30(b)(6) witness Matthew Brackett on 8 Feb 2023 (117-4)

pp. 128-129:

Q So prior to break, we were talking a little bit about Dr. Van Mol and Dr. Grossman’s involvement in the 2022 GAPMS. How did AHCA identify them to participate in the July 8th rule hearing that was related to? A So the — are we talking about the rule hearing? Q Yes, related to the June 2022 GAPMS. A So since we had already been working with them in relation to the GAPMS project, because Dr. Grossman is a psychiatrist, and Dr. Van Mol is a family — family practice practitioner, that’s based on their backgrounds and their knowledge of the existing evidence, that was our basis for selecting them to be on the panel for the July 8th hearing. Q And turning back to the individuals who wrote reports for the June 2022 GAPMS, who made the decision to contract with them to prepare those reports? A So after establishing each one, we wanted to — their backgrounds and their suitability to provide reports, that decision was made by, I think, now Secretary Weida. Q And who was involved in determining whether they had the appropriate backgrounds to write the reports? A So I think those individuals who were working with the experts, I think that was, of course, now Secretary Weida, I think at our time, General Counsel Josephina Tamayo.

Page 131:

Q When making that decision, did AHCA investigate whether any of the consultants had a stance related to the treatment of gender dysphoria? A We, of course, were looking for those that had — were knowledgeable about the existing literature of gender dysphoria, and those who would, for the supplemental reports, would take an evidence-based approach. Q Did it — so those were the only two criteria that you used to determine which consultants you would engage with? A Correct. Q And so opposition to gender-affirming care was not a factor in who you chose? A We were specifically looking — I think we might be talking semantics on what we consider opposition, but we were looking for individuals who were going to make reports and recommendations based on the existing evidence.

pp. 132-133:

Q So it’s not important to AHCA that the consultants with whom you engaged had actual experience treating gender dysphoria? A So based on how the GAPMS rule is written, the needs of the report, we really — the primary ask was for individuals who were steeped in the evidence. Q But didn’t necessarily have actual real life experience treating gender dysphoria? A Right, that wasn’t a primary consideration. Q Okay. For — was AHCA aware that all the consultants with which you engaged took a stance to oppose mainstream medical organizations’ stance on gender-affirming care? MR. JAZIL: Object to form. THE WITNESS: So are you talking about in opposition or in contradiction? BY MS. DEBRIERE:: Q Contradiction. A We — whether contradiction or alignment really was irrelevant, it really was taking a look and making evidence-based conclusions. Q Speaking to Dr. Brignardello-Petersen — I’m sorry. I’ll start here actually. In deciding on whether to use these consultants, was any input provided from the Alliance Defending Freedom? A No. Q What about the Heritage Foundation? A No. Q Liberty Council? A No. Q Society for Evidence-Based Gender Medicine? A We may have gotten Romina’s name from that organization. Q Okay. And what about the Family Christian Coalition? A No.

pp. 216-217:

Q This one is from Ashley to Dede, copying you. A August 22nd, 11:04 a.m. That’s Dede — Q 10:35 a.m. A Okay. Q It’s DEF_0002587. A Okay. I think it was just a minor, minor technical catch. I mean, when we worked on this, I mean, we were just fine tuning the drafts. Q And further up Ann wants to include the 60-day language in the alert, which has been later included. What is the 60-day language? A That would be the bottom paragraph of the policy transmittal. Q Okay. And that you’re referring to starts with: To ensure the safe discontinuation of puberty blockers or hormone and hormone antagonists for the treatment of gender dysphoria? A Uh-huh. Q Then the managed care plan must notify its subcontractors, providers, enrollees receiving active treatment and changes in coverage, and they must honor any current prior authorization of prescribed outpatient drugs for the treatment of gender dysphoria through 60 days after the date of this policy transmittal. So that means that under the 60-day rule for continuity of care, the managed care plans were to continue coverage of the prescribed outpatient drugs for the treatment of gender dysphoria, correct? A Only for those existing prior authorizations had already been approved. Q Okay. So that meant that AHCA was — or that Florida Medicaid was covering this drugs? A Yeah, just for the sake of honoring existing PA’s.

pp. 218-221:

Discussing the implementation of forcibly detransitioning Medicaid beneficiaries

Q Was it not important that the plans know that they should maintain continuity of care? A It’s actually in the contract. I mean, when you refer to continuity of care, can you clarify what you mean by continuity of care? Q In this instance, I’m talking about the continued coverage for 60 days of those prescribed outpatient drugs for the treatment of gender dysphoria. A As far as the continuity of care went, I mean, there — as far as medically necessary services, enrollees are always going to have access to those. So when it comes to the continuity of care, whether or — Q They’re not going to have access to services that have been previously covered, but now are excluded, correct? A That’d be correct. Q Okay. So the 60-day continuity of care ensures that after that categorical exclusion is adopted, those individuals continue to access that care for 60 days? A This, of course, was a draft. It was never sent out. Q At some point, AHCA thought that the 60-day period of continuity of care should apply in this situation, correct? A Since this was a draft and it was not — not officially sent out, this is not — since it is draft language, it is not an official transmittal, we sent out to the health plan, so this does not formally represent the views of the Agency. This is a — this is a draft that we created, deliberated upon and decided not to send out. Q Who decided? A That would, of course, been leadership. That would have been — would have gone to Assistant Deputy Secretary Weida. Q And he was the only one who was involved in that decision, correct? A I mean, since he oversees the bureau policy, that’s — which means policy transmittal, yes, he had — is within his — is within his job description and his responsibilities and rights to veto sending out a policy transmittal. Q Okay. Since the policy transmittal was not sent out, then is it AHCA’s position that those who had a current prior authorization at the time that categorical exclusion was adopted, was not entitled to the 60-day continuity of care period — were not entitled? A So once the rule went into effect, that was, of course, the notice of the plans that the coverage for these services has to stop. Q Immediately? A Well, I mean, that’s based on what the rules say, yeah. Q Okay. So they — that means that the plans were not to implement this 60-day period of continuity of care as described in this transmittal? A Right, we didn’t provide notice of — them of this. Q Okay. And it was AHCA’s position that Medicaid beneficiaries were not entitled to that? A That’s correct. Q Okay. You previously noted how people on hormones may go through withdrawal, there was something as part of your 2022 GAPMS request. Why wasn’t that important to communicate to the plans? A Well, because withdrawal is not gender dysphoria. It’s a different — that’s a different — it’d be a different diagnosis altogether. Q But in the decision to no longer cover drugs that may cause withdrawal, was it important to communicate to the plans or providers that they may need to help facilitate transition off those drugs that would no longer be covered? A We were leaving that to the health plans to manage independently, as well as the providers of these services.

Exhibit 4: June 14, 2022 email from Andre Van Mol to Jason Weida (117-5)

From: Andre Van Mol Sent: Tuesday, June 14, 2022 10:33 AM EDT To: Jason Weida Subject: Fwd: Florida item Hi, Jason. A friend of mine, a pediatrician in Florida with good knowledge on the subject (see his message below), wishes to testify on behalf of the policy. Do I put him in contact with you, or this Patrick Hunter gentleman who contacted me that he is organizing testimony? Thanks, Andre Sent from my iPhone

 

Confirms Patrick Hunter as of June 14 2022 or earlier was organizing testimony related to the AHCA’s proposed exclusion. This precedes his appointment by Gov. DeSantis to the Florida Board of Medicine on June 17. These efforts already substantially overlapped as the AHCA report was cited by the Florida Department of Health in their rulemaking petition to the BOM.

 

Exhibit 5: April 2022 email thread between Jason Weida, Andre Van Mol, and Michelle Cretella (117-6)

117-6 Correspondence with Michelle Cretella, Jason Weida, Andre Van Mol, Andrew Sheeran. April 21-26 2022. 117-6.pdf

Originally seeking to keep Cretella as an expert. Instead hired Van Mol. They knew he was a member of organizations that held these positions. CMDA, ACPeds.

Van Mol states he was a consultant for Missouri’s SAFE Act.

 

Exhibit 6: May 9, 2022 email from Quentin Van Meter to Jason Weida (117-7)

117-7 Email from Quentin Van Meter to Jason Weida, 9 May 2022 117-7.pdf

“Does this cover some of what you need from me?”

From: QUENTIN VAN METER Sent: Monday, May 9, 2022 9:19 PM EDT To: Jason.Weida@ahca.myflorida.com; jason.weida@ahca.myflorida.com Subject: my draft declaration Attachments: Declaration draft Florida.docx Does this cover some of what you need from me? Quentin

Exhibit 7: May 14, 2022 email from Quentin Van Meter to Jason Weida (117-8)

117-8 Email from Quentin Van Meter to Jason Weida, 14 May 2022 117-8.pdf

From: QUENTIN VAN METER Sent: Saturday, May 14, 2022 11:16 AM EDT To: jason.weida@ahca.myflorida.com Subject: new draft version of statement by Van Meter Attachments: Declaration draft Florida.docx Jason- attached is a rewritten document. references are not yet suppled, adjusted or cleaned up because I wanted to be sure this is the direction you wanted me to go with the document. Please let me know as soon as possible if this is what you need and if not, what can be improved and once I am sure I have provided such, I will clean up and add the necessary references. Quentin

Exhibit 8: May 10, 2022 email from G. Kevin Donovan to Jason Weida and Andrew Sheeran (117-9)

From: Weida, Jason Sent: Tuesday, May 10, 2022 4:29 PM EDT To: \”\”Pickle\”\”,\”\” Devona;\” \”Brackett\”\”,\”\” Matt;\” \”Chen\”\”,\”\” Nai; Matt.Brackett@ahca.myflorida.com; Devona.Pickle@ahca.myflorida.com; Nai.Chen@ahca.myflorida.com CC: Sheeran, Andrew Subject: Fwd: Florida Medicaid Project Attachments: Florida Medicaid Project Draft 1.docx Get Outlook for iOS From: G Kevin Donovan Sent: Tuesday, May 10, 2022 3:59:46 PM To: Weida, Jason Cc: Sheeran, Andrew Subject: Florida Medicaid Project Dear Jason, Here is my first draft for the requested consultation. I hope it meets your needs. Please tell me if you would need more, or would like any section expanded. Also distribute it as you see fit, including to any other consultants. Thanks, G. Kevin Donovan, MD, MA Pellegrino Center for Clinical Bioethics Professor Emeritus , Georgetown University Medical Center … and gladly would he learn, and gladly teach Chaucer

Exhibit 9: April 2022 email thread between Jason Weida, Andrew Sheeran, and Romina Brignardello-Petersen (117-10)

18 Apr 2022 email to Andrew Sheeran, prior to the Department of Health “guidelines” announcement. This was already being prepared.

From: Romina Brignardello Petersen Sent: Monday, April 18, 2022 3:45 PM To: Sheeran, Andrew Subject: Academic CV Hi Andrew, It was nice meeting you. Thank you for taking the time to provide more details about this. Please find attached my academic CV. The sections that may be more relevant to you are Degrees, Publications, and Clinical Practice Guidelines

21 Apr, meeting with Andrew Sheeran

From: “Sheeran, Andrew” Date: Thursday, April 21, 2022 at 6:05 PM To: “rominabp@gmail.com” Cc: “Weida, Jason” Subject: RE: Academic CV [ATTORNEY WORK PRODUCT] Romina, It was a pleasure speaking with you this morning. Attached is a sample expert declaration that was used in another case which might serve as a model for reports in our matter. We are still exploring the best mechanism for retaining experts, but we hope to have either contract or purchase order language for your review in the next few days. Thanks, Andrew T. Sheeran Chief Litigation Counsel Agency for Health Care Administration Office of the General Counsel 2727 Mahan Drive, Building 3, MS #3 Tallahassee, FL 32308 Telephone: (850) 412-3670 Fax: (850) 922-6484 Email: Andrew.Sheeran@ahca.myflorida.com

 

A sample expert declaration that was used in another case? This was absolutely prepared with the intent of litigation.

 

22 Apr 2022

Romina names her price

From: Romina Brignardello Petersen Sent: Friday, April 22, 2022 9:50 AM To: Sheeran, Andrew Cc: Weida, Jason Subject: Re: Academic CV [ATTORNEY WORK PRODUCT] Thank you for sending this, Andrew May I ask how much experts are paid? I remember Jason mentioned that there was some sort of regulation around that

 

22 Apr 2022 from Weida

From: Weida, Jason Sent: Friday, April 22, 2022 10:15 AM To: Romina Brignardello Petersen Cc: Sheeran, Andrew Subject: RE: Academic CV [ATTORNEY WORK PRODUCT] Hi Romina, I can respond to that question. It’s up to you to set an hourly rate. For purpose of this project, we’d like to keep each expert below $35,000 US for budgetary purposes. Happy to discuss in further detail. Jason

 

22 Apr 2022

“highest possible methodological standards”

“done by 2 independent people.”

From: Romina Brignardello Petersen Sent: Friday, April 22, 2022 12:41 PM To: Sheeran, Andrew Cc: Weida, Jason Subject: Re: Academic CV [ATTORNEY WORK PRODUCT] Thank you for this information, Jason and Andrew One last question. I am thinking that I would like to approach this report using the highest possible methodological standards. This requires that- even with a pragmatic approach- some of the stages of evidence evaluation are done by 2 independent people. Would it be possible for me to get help from a second person for some specific tasks and include their hourly fees? If not, that is ok too, but it does decrease the trustworthiness of the process and I would acknowledge this explicitly in the report. Best, Romina

22 Apr 2022 Weida agrees

From: Weida, Jason Sent: Friday, April 22, 2022 12:44 PM To: Romina Brignardello Petersen Cc: Sheeran, Andrew Subject: RE: Academic CV [ATTORNEY WORK PRODUCT] Hi Romina, Yes, two people would be fine. Each would need to go through the registration and contracting process. As long as that is OK, the answer is yes! I agree that having the highest methodological standards is important, so I fully support this approach. Thanks, Jason

25 Apr 2022, Romina discusses scope and time constraints.

 

From: “rominabp@gmail.com” Date: Monday, April 25, 2022 at 2:48 PM To: “Weida, Jason” Cc: “Sheeran, Andrew” Subject: Re: Academic CV [ATTORNEY WORK PRODUCT] Hi Jason, Just following up on this. Does the second person need to register separately? Also, after doing the searches and some screening of articles this weekend, I wanted to check with you that it is OK to focus on the major gender-affirming surgeries (phalloplasty, vaginoplasty, chest surgery) and leave out other surgical procedures like surgeries to change the pitch of the voice, hair transplants, Def_001900006 Case 4:22-cv-00325-RH-MAF Document 117-10 Filed 03/29/23 Page 1 of 7 and plastic surgery of the face and hands. Considering the time constraints, it would be very difficult to include those. Thank you Romina

Exhibit 10: May 2022 email thread between Jason Weida, James Cantor, and others (117-11)

117-11 From Weida to James Cantor, Devona Pickle 117-11.pdf

16 May, Cantor sends his initial report

Exhibit 11: May 13, 2022 email from Patrick Lappert to Jason Weida (117-12)

117-12 117-12.pdf Lappert sends his first draft, 13 May 2022

Exhibit 12: Text thread between Andre Van Mol and Jason Weida (117-13)

 

Exhibit 13: June 2022 email thread between Jason Weida, Ema Syrulnik, and Andrew Sheeran (117-14)

 

Exhibit 20. June 3, 2022 email from Ashley Peterson to Jason Weida and Ann Dalton (117-21)

 

Exhibit 22: Defendant AHCA’s March 1, 2023 responses to Plaintiffs written questions (117-23)

 

Agency Responses to Plaintiffs’ Questions: March 1, 2023

Plaintiffs’ Question: Please identify the Florida Department of Health employee(s) who provided the name “Michelle Cretella” or the name of any other consultant who AHCA relied upon or consulted with in the drafting of the 2022 GAPMS Memo. Agency Response: All communication that occurred between the Agency and the Department of Health occurred through verbal conversations. Agency staff that participated in these discussions do not recall the specific Department of Health employee who provided the name. Plaintiffs’ Question: Please identify all individuals who AHCA considered but decided not to use for assistance with drafting the June 2022 GAPMS report on treatment for gender dysphoria. Agency Response: Agency staff engaged in verbal communications with individuals that were referred by Dr. Michelle Cretella and do not recall the names of those individuals that were consulted.

 

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Last updated on 6 Apr 2023 by Zinnia Jones