Civil Action No. 02-2164, Section "N"
December 5, 2002
ORDER AND REASONS
Before the Court are Cross Motions for Summary Judgment filed by plaintiff S.D., a Medicaid recipient under the age of twenty one, and defendant, Louisiana's Department of Health and Hospitals ("DHH" or "State"). The motions were noticed for hearing on November 13, 2002, but were submitted on the briefs without oral argument. Both motions are opposed.
The claim involves the state Medicaid agency's denial of coverage for incontinence underwear for a teenage Medicaid recipient, who is totally incontinent as a result of his medical condition (i.e., spina bifida). S.D. argues that (1) because he is a teenage Medicaid recipient, pursuant to the federal Medicaid statute he has an enforceable right and the state of Louisiana has an enforceable obligation to proyide him all "medically necessary" services, for which the State can receive federal Medicaid matching funds, "whether or not such services are covered under the State plan," and (2) the state Medicaid agency's refusal to cover the cost of this "medically necessary" service constitutes reversible error.
DHH contends that it is entitled to summary judgment, arguing that nothing within the Medicaid Act requires the department to provide diapers to the plaintiff and that disposable diapers are merely a convenience, not a medical necessity. Moreover, the defendant submits that plaintiff has no enforceable right under 42 U.S.C. § 1983.
Finding that plaintiff's arguments have merit, the Court GRANTS the plaintiff's motion and DENIES defendant's motion for the following reasons.
The plaintiff S.D. is a sixteen year old Medicaid recipient afflicted with spina bifida, a chronic disabling birth defect that stems from the failure of the spine to properly close during early pregnancy. He receives Medicaid under the Social Security Act Title IV-E program, which provides assistance to promote the adoption of children with disabilities.
Because of his medical condition, S.D. has total bladder and bowel incontinence and is without sensation below the waist. Until last year when S.D. moved with his parents to Louisiana, these services ( i.e., medically necessary incontinence underwear) were covered by Medicaid in Virginia. In addition to requiring medical assistance for bladder and bowel incontinence, S.D. has difficulty walking because of his debilitating condition. He wears braces below the knee and has two club feet. For short distances, S.D. uses four-arm crutches and a swing gate to ambulate; certain activities and long distances require the use of a wheel chair.
Dr. Ernest Edward Martin, Jr., a board certified family practitioner since 1984 and Chairman of the Department of Family Medicine at New Orleans' Ochsner Clinic, prescribed incontinence underwear for S.D. in January 2002 to ameliorate his physical condition. Because of his lack of sensation below the waist, S.D. is not aware when he develops abrasions or infections, which can progress rapidly. The service or device ( i.e., incontinence underwear) wicks moisture away from the skin, and thus decreases the risk and incidence of irritation and infections. The ameliorative social and mental health aspects of this "medical assistance" are that without aid of incontinence underwear, S.D. would be confined to home, isolated, and unable to attend school or to engage in other age-appropriate activity.
This service is not unlike his wheelchair, a device that allows him the freedom from a physical handicap resulting from his condition. Indeed incontinence underwear allows him to move about the home, to travel distances and to participate in age-appropriate activities, minimizes the serious risk of skin infection.
Uncontroverted Declaration of Dr. Martin [Plaintiff's Exhibit "A"].
The prescription for incontinence underwear was submitted to the state Medicaid agency for prior approval, however approval was denied with coded notations that: (1) "the appliance, equipment, supplies or services is ( sic) available through another agency;" (2) the item is not considered medically necessary; and (3) this constitutes non-medical supplies not covered by Medicaid. Although S.D.'s father made inquiries as to other sources that cover incontinence underwear, his efforts were unsuccessful in locating another source to provide this service to S.D.
See Letter from the State of Louisiana, Department of Health and Hospitals and Summary of Evidence [Plaintiff's Exhibits "B1"].
On appeal, the DHH Administrative Law Judge (ALJ) affirmed the denial of services under Medicaid of Louisiana policy. At the hearing, the agency contended that the item was non-medical and not within the scope of the state's Medicaid program. The basis of the ALJ's decision was Louisiana's Medicaid regulation, to wit: "Diapers and blue pads are not reimbursable supply items under the Durable Medical Equipment Program." Although S.D.'s father requested coverage through the federal Medicaid Early and Periodic Screening, Diagnosis and Treatment ("EPSDT") provisions, the decision did not mention Medicaid's EPSDT requirements.
See Summary of Evidence [Plaintiff's Exhibit "B2"].
See Decision of ALJ Louis E. Pauratore, Legal Analysis and Recommendations, at p. 7 (admitting that "diapers are needed by these children," noting that "diapers are specifically excluded from coverage under the DME program," and nevertheless finding the denial "proper and in accordance with applicable DHH and Medicaid of Louisiana policy") [Plaintiff's Exhibit "B3"]; DHH Durable Medical Equipment ("DME") Rule [Plaintiff's Exhibit "C5"].
See Petition for Rehearing and 7-17-02 Ruling ( i.e., stamped "DENIED" without written reasons) [Plaintiff's Exhibit "C1"].
Thus there is a dispute over Louisiana's obligations under sections 1396a(a)(43) and 1396d(r)(5). To right the perceived wrong, plaintiff invoked 42 U.S.C. § 1983 and brought suit in federal court. Plaintiff seeks redress for the State's refusal to meet the Federal EPSDT requirements and to enforce the state's mandatory EPSDT obligation to correct or ameliorate his condition. See 42 U.S.C. § 1396a(a)(43)(C) and 1396d(r) (defining services "necessary . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services").
II. STANDARD OF REVIEW
Summary judgment is proper only if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). All reasonable inferences are drawn in favor of the nonmoving party. Abbeville General Hospital v. Ramsey, 3 F.3d 797, 801 (5th Cir. 1993). The parties here do not dispute the material facts. They argue whether the facts of record support a judgment as a matter of law that the Louisiana Medicaid agency failed to comply with federal Medicaid law.
There is a fundamental difference under Medicaid between agency discretionary duties and the state Medicaid agency's mandatory compliance with the EPSDT requirements of the Medicaid Act. It is DHH's compliance or noncompliance with the mandatory EPSDT requirement to provide services "necessary . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services" that is the subject of the parties' cross motions for summary judgment. The Court reviews a state agency's interpretation of a federal statute de novo. Here, the plaintiff complains of the state's noncompliance in practice with the EPSDT mandatory requirement to provide him, a Medicaid recipient under the age of twenty-one, medically necessary services required to ameliorate his condition. Whether DHH complied with the procedural and substantive requirements of federal Medicaid law is subject to de novo review.
Title XIX of the Social Security Act, 42 U.S.C. § 1396 et. seq., is commonly referred to as the Medicaid Act.
See Abbeville v. General Hospital v. Ramsey, 3 F.3d 797, 803-04 (5th Cir. 1993) (striking a balance between Congress's view of the federal role under the Medicaid Act and the general principles of federalism, which do not permit states to be the final arbiters of their compliance with federal law and holding that a deferential standard attaches to LDHH's exercise of discretion in setting reimbursement rates, but only after a reviewing court determines that LDHH made bonafide findings ( i.e., actual compliance)); see also 42 C.F.R. § 430.35 (c) (2001) ("A question of noncompliance in practice may arise from the State's failure to actually comply with a Federal requirement, regardless of whether the plan itself complies with the requirement.").
See, e. g., Southwestern Bell Telephone v. Public Utility Commission, 208 F.3d 475, 482 (5th Cir. 2000) (finding the de novo review standard applicable to issue of whether interconnection agreements complied with the requirements of the Federal Telecommunications Act).
III. ANALYSIS A. The Federal Medicaid EPSDT ProgramThe Medicaid program is a jointly funded federal-state program established by Congress for the purpose of enabling each State to furnish medical assistance to certain individuals. See 42 U.S.C. § 1396 et seq. Although a state's participation in the program is entirely voluntary, states which choose to participate and receive Federal matching funds must comply with federal Medicaid law. 42 U.S.C. § 1396a(a). Like all other states, Louisiana accepts federal funding for its Medicaid program, and thus obligates itself to comply with federal Medicaid law.
Two years after it was enacted in 1965, Congress augmented the federal Medicaid program's coverage to provide early and periodic screening, diagnosis and treatment (EPSDT) services to Medicaid eligible children. See 42 U.S.C. § 1396a(a)(10), 1396a(a)(43), 1396a(4)(B), 1396 d(r)(5). The 1967 amendments were Congress's response to the lack of medical care for America's poorest children. In 1989, Congress recognized the broad scope of federally mandated EPSDT provisions and bolstered the EPSDT requirements by prohibiting the states from restricting EPSDT benefits to those benefits offered under a state's Medicaid program.
See WELFARE OF CHILDREN, H.R. Doc. No. 54, 90th Cong., 1st Sess. (1967).
See Omnibus Budget Reconciliation Act of 1989 ("OBRA"), Pub.L. No. 101-239, § 6403, 103 Stat. 2106, 2262-64, codified at 42 U.S.C. § 1396d(r)(2001).
Federal Medicaid law requires participating states to provide a range of mandatory medical services to Medicaid recipients. 42 U.S.C. § 1396a et seq. Among the mandatory medical services required is the EPSDT program for Medicaid-eligible children under the age of 21. 42 U.S.C. § 1396a(a)(43), 1396d(a)(4)(B). The scope of EPSDT services is defined at 42 U.S.C. § 1396d(r)(5). EPSDT services are mandated if those services are a type of "medical assistance," as defined in § 1396d(a), that is "necessary . . . to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." 42 U.S.C. § 1396d(r)(5).
Section 1396d(r) defines the minimum services which the state must provide under the EPSDT program, to wit: 1) Screening services, including comprehensive health and developmental histories, comprehensive unclothed physical exams, appropriate immunizations, laboratory tests (including appropriate lead blood level assessments), and health education; (2) Vision services, including diagnosis and treatment from vision defects; (3) Dental services, including "relief of pain and infections, restoration of teeth, and maintenance of dental health"; (4) Hearing services, including diagnosis and treatment of defects in hearing; and (5) "Such other necessary health care, diagnostic services, treatment, and other measures described in subsection (a) of this section to correct or ameliorate defects and physical mental illnesses and conditions discovered by the screening services, whether or not such services are covered by the State plan." 42 U.S.C. § 1396d(r).
The term "medical assistance" in 42 U.S.C. § 1396d(a) means "payment of part or all of the cost of following care and services," such as "home health care," "prescribed drugs, dentures, and prosthetic devices," and "other diagnostic, screening, preventive, and rehabilitative services, including any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician . . . within the scope of their practice under State law, for the maximum reduction of physical or mental disability and restoration of an individual to the best possible functional level . . . ." 42 U.S.C. § 1396d(a) at subsections (a)(7), (a)(12), and (a)(13) (emphasis added).
Title 42 U.S.C. § 1396a(a) provides:
A State plan for medical assistance must —
* * *
(43) provide for —
(A) informing all persons in the State who are under the age of 21 and who have been determined to be eligible for medical assistance described in section 1396d(a)(4)(B) of this title, of availability of early and periodic screening, diagnostic, and treatment services [EPSDT] as described in section 1396d(r) of this title and the need for age appropriate immunizations against vaccine-preventable diseases. . . .Id. Thus, Louisiana must provide children under 21 with Medicaid coverage for all corrective treatment and medical assistance/services found to be necessary in an EPSDT screening and that is a covered service under federal Medicaid law, even if such service is not normally covered under a State's Medicaid program. In summary, the Medicaid statute lists services of 42 U.S.C. § 1396d(a)(4), which includes EPSDT at subsection (a)(4)(B) as one of the mandatory services that states must cover for all recipients listed in 42 U.S.C. § 1396a(a)(10)(A). As a Title IV-E Medicaid recipient, S.D. is among those for whom the service is mandatory.
In keeping with the federal mandate, Louisiana's program recognizes the "mandate from Congress that all medically necessary services be provided for persons under 21." See Coverage for EPSDT Eligibles for Medical Equipment, Appliances, and Supplies [Plaintiff's Exhibit "C2"]. It further provides:
Under the auspices of OBRA 89, durable medical appliances, equipment, and supplies are covered for EPSDT eligibles. Such appliances, equipment, and supplies require prior authorization, but they will be authorized for recipients under the age of 21 as long as the appliances are medically necessary. Id. (emphasis added).
See 42 U.S.C. § 1396a(a)(10)(A)(1); Declaration of Richard Dickson.
EPSDT was crafted with the intent that it be "the nation's largest preventive health program for children." The most noteworthy aspects of the 1989 EPSDT reforms were twofold: (1) Congress obligated participating states to provide a comprehensive package of preventive services that met reasonable standards of medical necessity; and (2) Congress expanded EPSDT services to include "[s]uch other necessary health care, diagnostic services, treatment, and other measures described [as medical assistance] to correct or ameliorate defects and physical and mental illnesses and conditions discovered by the screening services, whether or not such services are covered under the State plan." Id. § 1396d(r)(5). These amendments require states to provide Medicaid coverage for any service "identified as medically necessary through the EPSDT program." 135 Cong. Rec. S.6899, 6900 (daily ed. June 19, 1989) (statement of Sen. Chafee).
H.R. 3299, 101st Cong. § 4213 (1989).
42 U.S.C. § 1396a(a)(43), 1396d(r).
Hence, Louisiana must provide all services to Medicaid recipients that fall within the ambit of "medical assistance" as defined by the federal Medicaid statute. Louisiana must cover medically necessary services for S.D., even if not within the coverage of the state's plan, because S.D. is a qualified Medicaid recipient under the age of twenty-one.
B. Enforceability of the Medicaid Act's EPSDT Provisions
Section 1983 provides a federal cause of action against anyone who, acting pursuant to state authority, violates any "rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. The statute provides a remedy for violations of federal statutory and constitutional law.
See Maine v. Thiboutot, 448 U.S. 1, 4 (1980).
In this case, plaintiff asserts a federal statutory right under the Medicaid Act's EPSDT requirements to medically necessary services ( i.e., incontinence underwear), i.e., "medical assistance"/services prescribed by his treating physician as necessary to correct or ameliorate his physical defects and conditions discovered by the EPSDT screening services.
Plaintiff also seeks to enforce his rights under the home health care provisions, highlighting that home health care services are listed within 42 U.S.C. § 1396d(a), at (a)(7). "Home health care services" are defined by federal regulations as including "[m]edical supplies, equipment, and appliances for use in the home." 42 C.F.R. § 440.70 (b)(3); see also Skubel v. Fuoroli, 113 F.3d 330 (2nd Cir. 1997)( holding that 42 C.F.R. § 440.70, governing home health services, must be interpreted to permit the provision of services which may also be utilized outside of the home, such as wheelchairs, ostomy supplies and dressings). Additionally, plaintiff notes that 42 U.S.C. § 1396d(a) includes other service descriptions that could cover S.D.'s incontinence underwear, citing for example the following provision:
other diagnostic, screening, preventive, and rehabilitative services, including any medical or remedial services (provided in a facility, a home, or other setting) recommended by a physician. . . . 42 U.S.C. § 1396d(a)(13).
Plaintiff correctly notes that this is not the first time a court has addressed the issue of the enforcement of EPSDT provisions via § 1983. As explained herein below, the EPSDT provisions set forth at 42 U.S.C. § 1396a(a)(43) and 1396d(r)(5) are clearly enforceable through § 1983 under the Supreme Court's framework set out in Wilder v. Virginia Hosp. Assn., 496 U.S. 498 (1990) and Blessing v. Freestone, 520 U.S. 329 (1997).
In Blessing v. Freestone, 520 U.S. 329 (1997), the Supreme Court reiterated the test utilized to determine when federal statutes confer rights actionable through § 1983. The Court explained that "[i]n order to seek redress through § 1983, however, a plaintiff must assert a violation of a federal right, and not merely a violation of federal law. Id. at 340.
Three distinct factors must be examined by a court to determine whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Second, the right must not be so "vague and amorphous" that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the governmental unit, i.e., the state.
Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 430 (1987).
Wright, 479 U.S. at 431-32.
Wilder v. Virginia Hosp. Association, 496 U.S. 498, 510-11 (1990).
In Wilder, healthcare providers claimed that they had been deprived of their § 1396a(a)(13)(A) right to Medicaid payment both "reasonable and adequate to meet the costs incurred by efficiently and economically operated facilities." The Wilder Court held the provision enforceable under § 1983 because (1) the plaintiff health care providers were intended beneficiaries of the provision, (2) the provision imposed a binding obligation on participating states to adopt reasonable and adequate rates, (3) the statute set out factors which a state must consider in adopting its rates, and (4) the administrative scheme was not sufficiently comprehensive to demonstrate a congressional intent to preclude § 1983 relief.
See id. at 521-22 (also rejecting the argument that the availability of an action under the APA forecloses § 1983 relief, finding it "implausible to infer that Congress intended to replace the private judicial remedy under § 1983" with judicial review under the APA, "given that Congress believed that a private cause of action existed prior to the passage of the Boren Amendment and that the amendment reduced the Secretary's oversight role").
The Wilder/Blessing framework easily applies to the EPSDT requirement at issue in the case at bar. The statutory sections setting forth the Medicaid Act's mandatory EPSDT requirements are clearly intended to benefit the plaintiff S.D. The plain language of the statute demonstrates that Congress was attempting to increase preventive healthcare services for minor Medicaid recipients. The second inquiry asks whether the language of the statute is mandatory or precatory. The language of § 1396a(a)(43) is unambiguously mandatory, to wit: a state plan must provide certain services to minors. As to the third factor, whether the statute is clear and concrete enough for judicial interpretation, this Court is not the first to find that EPSDT provisions are not vague and amorphous.
See, e. g., Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir. 1993); Dajour B. v. City of New York, 2001 WL 830674 (S.D.N.Y.) (noting the provision of § 1393a(a)(1) providing that a state plan, if administered by a political subdivision of a state, is mandatory upon them).
See 42 U.S.C. § 1396a(a)(10)(A), 1396a(a)(43) 1396d(a)(4)(B).
Wilder, 496 U.S. at 512.
See Dajour B. v. City of New York, 2001 WL 830674, *8-9 (S. D. N.Y.) (noting that plaintiffs sought to enforce specific EPSDT provisions guaranteeing the specific services to Medicaid eligible children and that enforcement of §§ 1396a(a)(10), 1396a(a)(43)(A), (B) and (C), 1396d(a)(4)(B), 1396d(r) is not outside of the competency of the courts and listing numerous other court decisions permitting private causes of action under Section 1983 to enforce the EPSDT requirements of the Medicaid Act).
Where, as here, the plaintiff demonstrates that the federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983. Blessing, 520 U.S. at 341. The burden then shifts to the defendant to demonstrate that Congress foreclosed a § 1983 remedy, either by express statements in the underlying statute, or by creating a comprehensive enforcement scheme that is incompatible with individual enforcement. See id. To be privately enforceable, it is not enough that the provision be meant to benefit the plaintiff, be specific and mandatory; the provision must also mandate benefits to the specific plaintiff.
The Blessing Court held that relief under § 1983 was not available to enforce a federal child support statute. 520 U.S. at 333-35. The Court was reluctant to enforce a statute which required the Secretary to "look to the aggregate of services provided by the state, and not whether the needs of any particular person have been satisfied," holding instead that a provision requiring that state be in "substantial compliance" with the federal child support law only tangentially benefitted plaintiffs. Id. at 343. The Court noted that plaintiffs' efforts to enforce the entire child support scheme painted with "too broad a brush." Id. at 342.
In the case at bar, S.D. does not seek to enforce a "yardstick" or a provision requiring "substantial compliance." Unlike the plaintiffs in Blessing, S.D. has isolated provisions within the Medicaid Act which are sufficiently clear and concrete. Plaintiff seeks to enforce his own rights, which Congress guaranteed him as a Medicaid recipient under the age of 21.
The EPSDT provisions at issue are not akin to the "standardless promulgation" considered by the Blessing Court, and in fact provide considerable detail about the timing and kind of specific services that must be provided to a readily identifiable group of Medicaid recipients, inter alia. The EPSDT provisions of the Medicaid Act are also more definite than the "reasonable access" provision held enforceable by the Supreme Court in Wilder, supra.
See Pediatric Specialty Care, Inc. v. Arkansas Department of Human Services, 293 F.3d 472, 479 (8th Cir. 2002) (finding that the language in § 1396a, § 1396a(a)(10)(A) and § 1396a(a)(43) is mandatory language and creates a binding obligation upon the participating state to provide services as defined in § 1396d(r)).
The Medicaid Act provides no comprehensive remedy. The argument that federal funds may be withheld for a state's substantial non-compliance with the Act was discussed in Wilder, supra. The Court concluded that: "This administrative scheme cannot be considered sufficiently comprehensive to demonstrate a congressional intent to withdraw the private remedy of § 1983." Focusing on the "fair hearing" provision ( i.e., "the sole artifact of any remedy" set forth in the Act), the First Circuit observed that a fair hearing was something that the Due Process Clause might require in any case. Like the Supreme Court in Wilder, the First Circuit discerned no intimation of a congressional intent to foreclose any remedy. Rosie D. v. Swift, 2002 WL 31478775 (1st Cir. 2002).
Wilder, 496 U.S. at 522; see also Frazar v. Gilbert, 300 F.3d 530, 551 n. 109 (5th Cir. 2002) ("In contrast to Seminole Tribe . . . the Medicaid Act does not have an intricate remedial scheme regulating non-compliance by a state. The only remedial sanction is that the Secretary of Health and Human Services can cut funding to the state. 42 U.S.C. § 1396c.").
Even before the 1989 statutory amendment, court's enforced the mandate to provide services beyond the scope of the state's Medicaid program in order to correct or ameliorate children's medical problems. Language added in 1989 broadening the scope of the mandate to provide services is similarly enforceable. Moreover, the Fifth Circuit has recognized the private enforceability of Medicaid Act requirements. Numerous courts have held that the states' duty to provide a broad scope of treatment services available to EPSDT eligible participants is an enforceable obligation. Finally, federal regulations explicitly anticipate judicial enforcement of Medicaid requirements, authorizing federal matching payments for court-ordered expenditures.
See, e.g., Mitchell v. Johnston, 701 F.2d 337, 350-51 (5th Cir. 1983) (allowing Texas children who qualified for Medicaid benefits to enforce the EPSDT preventive and treatment dental services via § 1983); Bond v. Stanton, 655 F.2d 766, 767-69 (7th Cir. 1981) (also construing the predecessor to the current EPSDT statute and holding § 1983 available to enjoin violation of indigent children's federal rights); Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1121-23 (3rd Cir. 1979) (construing implementing regulations defining EPSDT care, treatment and other required or ameliorative measures to include and require the provision to medically necessary orthodontic services, and thus reversing and remanding for the entry of an appropriate supplementary injunction requiring the Commonwealth to provide eligible EPSDT such services).
See, e. g., Pediatric Specialty Care, Inc. v. Arkansas Department of Health and Human Services, 293 F.3d 472, 478-79 (8th Cir. 2002) (finding that the statutory language creates binding obligation upon ADHS to create a state plan that includes the provision of EPSDT services as defined in § 1396d(r); Miller by Miller v. Whitburn, 10 F.3d 1315, 1319 (7th Cir. 1993) (finding § 1396d(r) requirement enforceable); Antrican v. Buell, 158 F. Supp.2d 663, 670 (E.D. N.C. 2001) (finding that Congress intended § 1396a(a)(1) to benefit Medicaid recipients by ensuring statewide application of Medicaid plans, that the provision's command is mandatory and specific, and that the requirement is within the competence of the judiciary to enforce).
See Frazar v. Gilbert, 300 F.3d 530, 550-51 n. 109 (5th Cir. 2002) (recognizing that "the EPSDT program does impose some binding obligations on the states" and that they "`must' meet the federal mandates set out in that statute, including the requirements for EPSDT programs set out in § 1396a(a)(43)"); Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908, 931-32 (5th Cir. 2000) (finding the Medicaid Act's "equal access" provision not vague and amorphous because "equal access and quality of care measured against the access rendered to the general population in the same geographic area, there is an `objective benchmark' for measurement"); Mitchell v. Johnston, 701 F.2d 337, 350-51 (5th Cir. 1983) (requiring the state to cover seven specific dental procedures as a requirement of its EPSDT obligations); see also Rosie D. v. Swift, 2002 WL 31478775 (1st Cir. 11/7/2002) (allowing a § 1983 suit for prospective injunctive relief).
See Evergreen Presbyterian Ministries Inc., 235 F.3d at 924 (applying Blessing factors and finding that 42 U.S.C. § 1396a(a)(30)(A) created a federal right enforceable by Medicaid recipients under § 1983); Pittman by Pope v. Secretary, Florida Department of Health and Rehabilitative Services, 998 F.2d 887, 889, 891-92 (11th Cir. 1993) (holding that § 1396d(r)(5) grants enforceable rights to Medicaid recipients under the age of 21 to the full, broad range of healthcare treatment prescribed by the statute); Hunter v. Chiles, 944 F. Supp. 914 (S.D. Fla. 1996) (addressing augmentative communicative devices and services); Montoya v. Johnston, 654 F. Supp. 511 (W.D. Tex. 1987) (Texas Medicaid program's coverage of liver transplants for children and youths).
See 42 C.F.R. § 431.250 (b)(2) (d) (authorizing payments for services provided within the scope of the Federal Medicaid program made under a court order and payments made to extend the benefit of a hearing decision or court order to individuals); see, e.g., Antrican v. Buell, 158 F. Supp.2d 663, 672-73 (E.D. N.C. 2001) (noting that § 1396a(a)(10)(A) refers to benefits received by needy individuals, and its implementing regulations, 42 C.F.R. § 440.240 (b) and 440.250(a), also utilize the terms, individual and recipient).
C. Medically Necessary Services Mandated by Federal Medicaid Act
Next, the Court turns to the issue of whether the federal Medicaid Act requires Louisiana to provide incontinence underwear to S.D. as medically necessary services. At the outset, the Court notes that the precise issue is not whether the State Plan must cover the cost of incontinence supplies that are medically necessary for the maximum reduction of S.D.'s disability. The issue is rather whether the state's refusal to approve these services violates federal Medicaid law. The parties agree that in order for a requested service to be mandatory whether or not included within the state's Medicaid plan, it must: (1) be within the scope of services permissible under the federal Medicaid program; and (2) meet the medical necessity criteria. DHH argues that diapers are not within the scope of permissible services, and that, in any event, incontinence underwear is merely a convenience item which is not "medically necessary."
See Defendant's Memorandum in Support of its Motion for Summary Judgment, at p. 4; and Plaintiff's Memorandum in Support of his Motion for Summary Judgment, at p. 10 (citing Hope Medical Group for Women v. Edwards, 63 F.3d 418, 427 (5th Cir. 1995), cert. denied, 517 U.S. 1104 (1996)).
Incontinence supplies are unquestionably within the scope of services fundable under § 1396d(a) for EPSDT recipients. The summary judgment record amply demonstrates that the federal Medicaid agency has approved at least eight state Medicaid plans which include disposable incontinence underwear and similar supplies. Indeed, the defendant offers an e-mail from a staff person at CMS, the federal Medicaid agency, conceding coverage of incontinence supplies in the case of older children who are unable to control these functions. [Defendant's Exhibit "BB-2"]. The defendant's argument regarding the federal agency's approval of state plans that do not provide diapers as a service begs the question. The statutory framework mandates that participating states provide a broad range of medically necessary services to Medicaid recipients under the age of 21, regardless of whether the service, treatment or item is included in the State Plan. The EPSDT provisions anticipate the eventuality that many medically necessary services will not be specifically covered by a state plan and may be explicitly excluded from coverage. Medical necessity aside, participating states are obligated to provide necessary services within the scope of § 1396d(a) for EPSDT recipients.
Now turning to the issue of medical necessity, there is no support in the record for the determination that incontinence underwear are unnecessary in S.D.'s case. Moreover, there is substantial, if not unrefuted and overwhelming, evidence to the contrary, i.e., that pursuant to periodic screening the plaintiffs treating physician Dr. Martin determined that incontinence underwear is necessary to ameliorate S.D.'s physical conditions and to ensure his mental health despite such daunting handicaps.
It is clear, from thorough reading of the ALJ's decision in S.D.'s case, that "medical necessity" and the exigencies of his particular medical needs were either given short shrift and likely given no consideration at all. The "Findings of Fact" section of the ALJ's decision mentions only Spina Bifida and bladder incontinence, and fails to make any reference to S.D.'s concomitant complete bowel incontinence and total lack of sensation below the waist. The ALJ made no formal "findings of fact" regarding the "medical necessity" of incontinence underwear in S.D.'s case. See ALJ's Decision, p. 6. However, in the context of his "legal analysis," the ALJ arguably recognized the medical necessity of incontinence supplies for children afflicted with spina bifida and bladder incontinence, stating that:
The Court here notes that under the section of the ALJ's decision entitled "Requirements for Approval," they include: (1) the recommendation in writing by a licensed physician; (2) whether the item is medically necessary because it is needed by a recipient who has a serious impairment to enhance well-being, prevent further impairment, or increase self-care. . . .; (3) the item is not available though another agency; (3) the item is covered by Medicaid;. . . . See ALJ Louis E. Pauratore's Decision on Appeal in the case of S.D. heard May 3, 2002 (ALJ's Decision), at p. 3 [Plaintiff's Exhibit "B-3"].
Diapers are not listed as a covered medical supply item in the Durable Medicaid Equipment (DME) Program or the Medicaid Eligibility Manual. Although it is understandable why diapers are needed by these children, diapers are specifically excluded from coverage under the DME Program. Accordingly, the denial of prior authorization for the diaper supplies was proper and in accordance with applicable DHH and Medicaid of Louisiana policy.Id. at pp. 7 (emphasis added). Plaintiff's petition for rehearing was denied without any written reasons therefor.
DHH's after-the-fact determination that the incontinence supplies are not medically necessary for S.D. finds no support in the record. Defense expert Dr. Marhinda D. Jayasinghe, M. D., board certified in pediatrics with a subspecialty in pediatric cardiology, expressed the following generic one-line opinion: "It is my professional opinion that incontinence underwear does not ameliorate spina bifida or incontinence." All of the publications listed by Dr. Jayasinghe in the curriculum vitae attached as Defendant's Exhibit "MJ 1" concern heart disease. For the last three decades ( i.e., since 1969), Dr Jayasinghe's experience appears to have been singularly focused on adult and pediatric cardiology. There is no indication that DHH's expert is familiar with the precise physical conditions of the plaintiff in the case at bar, and/or any secondary mental health issues such dire physical handicaps interject. Dr. Jayasinghe makes no overtures about having studied the medical records of S.D., having examined S.D., or even having had the occasion to treat patients like S.D. with any regularity. The record is devoid of any mention of experience or training treating either infants or sixteen year-old boys afflicted with spina bifida, and complete and total bladder and bowel incontinence as well.
See, e.g., Shaboon v. Duncan, 252 F.3d 722, 737 (5th Cir. 2001) (expert's bald, unexplained opinion on the ultimate legal issue was not enough to create an issue of material fact).
See Declaration of Mahinda D. Jayasinghe, M. D., at para. 1.
It is uncontroverted that without incontinence supplies, S.D.'s condition would be physically compromised even further. His total lack of sensation below the waist will leave him prey to skin infections, which progress rapidly undetected. In S.D.'s case, the condition is described by his treating physician Dr. Martin as chronic and total bladder and bowel incontinence. Dr. Martin further opines, that "from a mental health standpoint" incontinence underwear is medically necessary, otherwise S.D. would be unable to live a normal life and engage in age appropriate activities. Dr. Martin's prescription and opinion that incontinence underwear ( i.e., "12 month supply — change 6X a day") is medically necessary to ameliorate S. D.'s conditions finds substantial support in the record and is uncontroverted.
See Declaration of Dr. Martin, at para. 11 [Plaintiff's Exhibit "A"].
Id. at para. 7.
Dr. Martin notes that the incontinence underwear is necessary also to contain S.D.'s bowel movements. Id. at 11. Considering the circumstances, Dr. Martin's opinion as a board certified Family Practitioner sufficiently establishes "medical necessity" for this sixteen year old boy from a mental health standpoint as well.
Id. at para. 9.
In sum, the Court finds that the DHH's standing policy of refusing to provide incontinence underwear for Medicaid recipients for whom such "medical assistance" has been found medically necessary by EPSDT screenings violates the federal Medicaid Act. The plaintiff should not have to revisit the DHH with the issue of whether incontinence underwear is within the scope of the federal Medicaid Act. More specifically, through age 21, S.D.'s eligibility for such "medical assistance" shall be judged based simply on "medical necessity." Accordingly, there being no material issue of fact that denying S.D. Medicaid assistance under the circumstances of this case violates the federal Medicaid law,
IT IS ORDERED that the plaintiff's Motion for Summary Judgment is GRANTED.
IT IS FURTHER ORDERED that the defendant's Motion for Summary Judgment is DENIED.
IT IS FURTHER ORDERED that counsel for the plaintiff and defendant shall jointly submit the proposed form of judgment consistent with the foregoing order and reasons, within ten days of the entry of this order.
42 U.S.C. § 1988, a companion statute of § 1983, authorizes an award of attorney's fees to the prevailing plaintiff in a case such this, unless special circumstances would render such an award unjust.