MEDICAID SEQUENTIAL EVALUATION PROCESS:
ALLOWABLE PROCEDURES & SUBSTANTIVE REQUIREMENTS
1. General eligibility for Medicaid must be satisfied
2. Prior Approval request must be submitted for review
3. Provider qualifications or limitations must be satisfied
4. Request must "fit" a covered benefits category (service) -- if no definition, must show request is comparable to other items covered
5. Request must "fit" a covered benefits category (service) -- match characteristics of request to specific definition of covered services
6. Treatment-specific assessment and report may be required and must be adequately completed
7. Requested treatment must be established as safe and effective
8. Requested treatment must be established as not experimental
9. Requested treatment must not have any age-based differences in ability to benefit
10. Establish any/all specific eligibility rules for covered service are met
11. Medical need must be satisfied: request must be "treatment"
12. Request must not be duplicative; not within useful life standards
13. Request must be LCEEA (least costly equally effective alternative)
14. Request must satisfy knowledgeable reviewer
EXAMPLES OF IMPROPER MEDICAID PRACTICES
RELATED TO COVER
AGE OF SPECIFIC TREATMENTS
Exception
Standards & Procedures
Lists of Excluded Items
Exclusive Categorizations within
Specific Benefits Categories
Waiver Deferrals
Condition Restrictions
Age Restrictions
Cost "Caps"
MEDICAID EXCLUSIVE LIST DEVELOPMENTS
MARCH, 1999 - MARCH, 2000
1. Desario settles: Connecticut Medicaid agrees to eliminate exclusive list, adopts procedure consistent with 9/4/98 SMD letter
2. Esteban decision is amended to bar Florida Medicaid's absolute funding limit for wheelchairs; Court relies on 9/4/98 SMD letter; decision relies on state as well as federal standards
3. Smith decision in Iowa updates and re-affirms Pinnecke (sex re-assignment surgery must be covered procedure); court conducts detailed review of state?s basis for claimed coverage exclusion; refuses to credit state "experts" who never treated patients with the disputed surgical procedure
4. Will T. decided: GA directed to cover AAC devices; Court gives grudging deference to 9/4/98 SMD letter; Coverage upheld under DME, P/D, and SLP services categories; GA Medicaid given 30 days to propose coverage criteria; court suggests state retain skilled decision maker as consultant
5. But: Rodriguez reversed by Second Circuit; Court mis-applies amount, duration and scope rule; says inquiry should look to state's purpose in covering, limiting, or excluding a service
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
DESARIO, ET AL
NO.396CV646(JBA)
Plaintiffs-appellees
v.
THOMAS,
Defendant-thirdparty
plaintiff-appellant
v.
SHALALA
Third Party Defendant JUNE 14, 1999
SETTLEMENT AGREEMENT
WHEREAS, the named plaintiffs brought this action on behalf of a class of individuals eligible for Medicaid who now or in the future will be in need of durable medical equipment ("DME") that is not on the Department of Social Services' ("Department") currently exclusive list of covered DME, and which thus is not covered, to prohibit the Defendant Commissioner from denying Medicaid coverage for such equipment on this basis; and
WHEREAS, the parties wish to resolve this matter without further litigation through the implementation of the below-described changes in the Department's policies and procedures for coverage of DME;
WHEREAS, the parties agree that the plaintiff will seek voluntary dismissal without prejudice of this action pursuant to Rules 23(b)(2), 23(e) and 41 F.R.C.P. at such time as the defendant adopts regulations that are consistent with the provisions stated in Paragraphs 1-5 of this stipulation. It is understood that nothing in this stipulation should be construed as admission by the Depapartment that its current Medicaid coverage policies on durable medical equipment ("DME") are in any way contrary to the requirements of federal law.
The parties further agree that the defendant will have fully performed her obligations under this Settlement Agreement at such time as the Department adopts regulattions in accordance with Paragraphs 1-6 of this agreement and that, at such time. plaintiff will have no further enforceable rights as a result of this agreement.
WHEREFORE, in consideration of the mutual covenants made herein, the parties agree as follows:
1. Notwithstanding the language in Section 189 E.II.a and 189,E.III.a. 1 to 4, effective immediately, the Defendant Commissioner agrees that no request for prior authorization for equipment will be denied because the requested item either is not on the Department's then current fee schedule for DME or has ever been specifically rejected for inclusion on its fee schedule for DME.
2. The Defendant Cominissioner agrees to take regulatory action, in accordance with the Uniform Administrative Procedures Act (UAPA), Conn. Gen. Stat, ' 4-166 et. seq., and Conn. Gen. Stat. ' 17b-2, to eliminate the language in Sections 189.E.II.a. and 189.E.IIIa. 1 to 4 from the Department's Medical Services Policy Manual.
3. The Commissioner shall take regulatory action, in accordance with the Uniform Administrative Procedures Act (UAPA), Conn. Gen. Stat. ' 4-166 et seq., and Conn. Gen. Stat, ' 17b-2, to amend the language in Section 189.E.II.a of the Departmenes Medical Services Policy Manual to require that the recipient requesting an item of DME which is not on the Department's. fee schedule demonstrate that there is no less costly Medicaid service or item that can treat the recipient's medical needs in an equally efficacious manner.
4. The Defendant Commissioner agrees to take regalatory action, in accordance with the Uniform Administrative Procedure Act (UAPA), Conn. Gen. Stat. ' 4-166 et.seq. and Conn. Gen. Stat ' 17b-2, to adopt written procedures for the annual addition of items to any non-exclusive list of covered DME developed or maintained by the Defendant Commissioner which shall include procedures for notification of the time schedule for making such modifications.
5. It is agreed that the Commissioner may comply with her obligations under paragraphs 2-4 of this agreement by taking reasonable, good faith efforts to promulgate regulations which are consistent with the draft regulations attached hereto as Exhibit A. It is understood that the draft regulations attached hereto as Exhibit A only implement the parties' agreement with respect to the elimination of policy that currently limits Medicaid coverage to the medical equipment that is listed in the Departments fee schedule, but that the contemplated medical equipment regulations will address other areas that are beyond the scope of this litigation and will not be inconsistent with the terms of this Agreement. In the event that Defendant Commissioner fails to publish any of the proposed regulations described in paragraphs 2 through 4, supra within six months of the date of this Agreement, or such regulations are not promulgated within eighteen months of the date of this Agreemeut notwithstanding her good faith efforts, the Agreement shall be voidable at the election of any party. If the agreement is voided by either party, the parties agree that the preliminary injunction issued by the District Court on January 10, 1997, February 13, 1997 and March 6, 1997 shall remain in effect pending further court order.
6. Upon promulgation of the Departments regulations, prepared in accordance with paragraphs 2 through 5, supra the plaintiffs agree to file the attached Notice of Dismissal in the United States District Court for the District of Connecticut requesting its approval in accordance with Fed. R. Civ. P. 23(b)(2) and 23(e) and 41. The parties agree that individual notice of dismissal is not required in this action. Should the Court nonetheless order that notice be given to class members, the parties agree that the cost of providing such notice will be split evenly between the parties. The parties ftuther agree that, in that eventuality, the Commissioner shall issue any court-ordered notices, advance the full cost of such notice, and the plaintiffs' share of such costs shall be deducted from the amount of attorneys fees and costs agreed upon pursuant to &9.
7. The Defendant Commissioner agrees to seek dismissal without prejudice of her pending appeal to the Second Circuit from the District Court's entry of a preliminary injunction at such time as this Settlement Agreement is signed by counsel for the plaintiffs and the defendants.
8. Subject to the approval of the District Court, the parties agree that this case shall be considered to be in "Inactive Status" in the District Court once this Court approves the Settlement Agreement which Agreement contemplates the adoption of regulations and the subsequent voluntary dismissal of the action without prejudice. The parties further agree, however, that if either party elects to void this Settlement Agreement, in accordance with Paragraph 5, the parties agree to jointly petition the District Court to have the case revert to "Active Status" asking the District Court to issue a revised scheduling order seeking to have the case proceed to judgment on the merits by trial or by summary judgment with reasonable dispatch.
9. Upon dismissal of this action pursuant to this Settlement Agreemen% the defendant agrees to pay plaintiffs $160,000.00 as full payment for all attorneys' fees and costs incurred in connection with the prosecution of this action, said amount to be split between the two legal aid organizations which employ plaintiffs' counsel as agreed upon by plaintiffs' counsel. Said amount shall be paid within sixty days following dismissal of the action and the defendanes receipt of written notification signed by all counsel to plaintiffs of the apportionment of fees between the two legal aid organizations.
10. The parties agree to make joint news, announcement(s) regarding the settlement agreement and that further interactions with the news media regarding this case will, to the extent feasible, be done on a joint basis.
ON BEHALF OF THE PLAINTIFFS,
Sheldon V. Toubman
Susan L. Garten
Federal Bar No. 008533
Federal Bar No. ct00329
Shelley A. White
Greater Hartford Legal Assistance, Inc.
Federal Bar No. ctO5727
80 Jefferson Street
New Haven Legal Assistance Association Hartford, CT 06106
426 State Street
New Haven, CT 06510
ON BEHALF OF THE DEFENDANT COMMISSIONER
RICHARD BLUMENTHAL
ATTORNEY GENERAL
Richard J. Lynch
Assistant Attorney General
Judith A. Merrill
Hugh Barber
Assistant Attorney General
Assistant Attorney General
Federal Bar No. ctO5561
Federal Bar No. ct05731
Office of The Attorney General
Office of The Attorney General
55 Elm Street P.O. Box 120
55 Elm Steet. P.O. Box 120
Hartford, CT 06141-0120
Hartford, CT 06141-0120
Approved:
Judge
6/22/99
Date
DEPARTMENT OF HEALTH & HUMAN SERVICES
Health Care Financing Administration
___________________________________________________________________________
Center for Medicaid and State Operations
7500 Security Boulevard
Baltimore, MD 21244-1850
September 4, 1998
Dear State Medicaid Director:
We have received a number of inquiries regarding coverage of medical equipment (ME) under the Medicaid program in light of the ruling of the United States Court of Appeals for the Second Circuit in DeSario v. Thomas. In that case, the court examined the circumstances under which a State may use a list to determine coverage of ME and offered its interpretation of HCFA's policies. We have concluded that it would be helpful to provide States with interpretive guidance clarifying our policies concerning ME coverage under the Medicaid program and the use of lists in making such coverage determinations. This guidance is applicable only to ME coverage policy.
As you know, the mandatory home health services benefit under the Medicaid program includes coverage of medical supplies, equipment, and appliances suitable for use in the home (42 C.F.R. § 440.70(b)(3)). A State may establish reasonable standards, consistent with the objectives of the Medicaid statute, for determining the extent of such coverage (42 U.S.C. § 1396(a)(17)) based on such criteria as medical necessity or utilization control (42 C.F.R. § 440.230(d)). In doing so, a State must ensure that the amount, duration, and scope of coverage are reasonably sufficient to achieve the purpose of the service (42 C.F.R. § 440.230(b)). Furthermore, a State may not impose arbitrary limitations on mandatory services, such as home health services, based solely on diagnosis, type of illness, or condition (42 C.F.R. § 440.230(c)).
A State may develop a list of pre-approved items of ME as an administrative convenience because such a list eliminates the need to administer an extensive application process for each ME request submitted. An ME policy that provides no reasonable and meaningful procedure for requesting items that do not appear on a State's pre-approved list, is inconsistent with the federal law discussed above. In evaluating a request for an item of ME, a State may not use a "Medicaid population as a whole" test, which requires a beneficiary to demonstrate that, absent coverage of the item requested, the needs of "most" Medicaid recipients will not be met. This test, in the ME context, establishes a standard that virtually no individual item of ME can meet. Requiring a beneficiary to meet this test as a criterion for determining whether an item is covered, therefore, fails to provide a meaningful opportunity for seeking modifications of or exceptions to a State's pre-approved list. Finally, the process for seeking modifications or exceptions must be made available to all beneficiaries and may not be limited to sub-classes of the population (e.g., beneficiaries under the age of 21).
In light of this interpretation of the applicable statute and regulations, a State will
be in compliance with federal Medicaid requirements only if, with respect to an individual
applicant's request for an item of ME, the following conditions are met:
• The process is timely and employs reasonable and specific criteria by which an
individual item of ME will be judged for coverage under the State's home health services
benefit. These criteria must be sufficiently specific to permit a determination of
whether an item of ME that does not appear on a State's pre-approved list has been
arbitrarily excluded from coverage based solely on a diagnosis, type of illness, or
condition.
• The State's process and criteria, as well as the State's list of pre-approved items, are made available to beneficiaries and the public.
• Beneficiaries are informed of their right, under 42 C.F.R. Part 431 Subpart E, to a fair hearing to determine whether an adverse decision is contrary to the law cited above.
We encourage you to be cognizant of the approval decisions you make regarding items of ME that do not appear on a pre-approved list, to ensure that the item of ME is covered for all beneficiaries who are similarly situated. In addition, your list of pre-approved items of ME should be viewed as an evolving document that should be updated periodically to reflect available technology.
HCFA's Regional Offices will be monitoring compliance with the statute and regulations that are the subject of this guidance. Any questions concerning this letter or the ME benefit may be referred to Mary Jean Duckett of my staff at (410) 786-3294.
Sincerely,
/s/
Sally K. Richardson
Director
cc: All HCFA Regional Administrators
All HCFA Associate Regional Administrators
for Medicaid and State Operations 77 F.Supp.2d 1256,
66 Soc.Sec.Rep.Ser. 9
Manuel ESTEBAN, et al., on behalf of themselves and all other
persons
similarly situated and The Advocacy Center for Persons with Disabilities, Inc.,
Plaintiffs,
v.
Doug COOK, in his official capacity as Director of the Agency
for Health Care
Administration for the State of Florida, et al.,
Defendants.
No. 97-2830-CIV.
United States District Court,
S.D. Florida.
May 20, 1999.
AMENDED MEMORANDUM OPINION
GRAHAM, District Judge.
* * * * *
On September 30, 1998, this Court entered an Order granting Plaintiffs' Motion for Summary Judgment as to certain Plaintiffs and granting Defendants' Motion for Summary Judgement as to certain Plaintiffs. Subsequently, the Court was notified that an intervening change in controlling law had occurred that justified reconsideration of the Order. Ramos v. Boehringer Manheim Corp., 896 F.Supp. 1213, 1214 (S.D.Fla.1994). On September 4, 1998, the Health Care Financing Administration (HCFA), to which the Secretary of Health and Human Services has delegated primary responsibility for administration of the Medicaid program (see 42 Fed.Reg. 57,351, 57,352 (1977)), sent a letter to all state Medicaid directors setting out new interpretive guidance to clarify the Secretary's position on coverage determinations for medical equipment. Accordingly, the Court reconsiders the September 30, 1998 Order and finds as follows:
I. BACKGROUND
A. Introduction
Plaintiffs, all over age 21, are Medicaid-eligible individuals with severe mobility impairments. Their doctors have determined that Motorized and Customized Mobility Devices and Services ("MCMDS") are necessary to treat their mobility impairments. Customized wheelchairs have been in existence since the evolution of wheelchairs. Motorized wheelchairs first came into usage in 1957, over forty years ago. Today, the Medicaid programs in forty-five states provide customized wheelchairs to adults, and forty-four provide motorized wheelchairs to adults. The Defendants are state officials responsible for administering Florida's Medicaid program. The Defendants have refused to provide MCMDS to the Plaintiffs when medically necessary.
The State of Florida covers both motorized and customized mobility devices for individuals under age 21, but limits its coverage of mobility devices for individuals age 21 and over to wheelchairs costing $582 or less. The $582 cap effectively denies both motorized and customized mobility devices to Medicaid recipients age 21 and over. [FN1]
FN1. For $582 or less, an individual can only obtain a standard sling wheelchair that does not have a solid seat.
The question presented is whether the State of Florida's absolute limitation of $582 on the coverage of wheelchairs provided to Plaintiffs is contrary to the purposes of the Medicaid Act, Title XIX of the Social Security Act, 42 U.S.C. ? 1396 (the "Medicaid Act"). This Court holds that the absolute limitation of $582 on the coverage of wheelchairs provided to Plaintiffs is contrary to the Medicaid Act in that it violates Medicaid's requirement that covered services be sufficient in amount, duration, and scope to achieve their purpose.
B. Contentions of the Parties
Plaintiffs brought this class action against Defendants seeking injunctive and *1258 declaratory relief for failure to provide them with MCMDS when medically necessary. Plaintiffs claim that by denying medically necessary MCMDS and associated repairs, Defendants are violating the federal Medicaid Act. The Plaintiffs claim that the $582 cap on MCMDS is unreasonable and violates Medicaid's requirement that covered services be sufficient in amount, duration, and scope to achieve their purpose. Plaintiffs further argue that the State's denial of MCMDS to adults, while providing them to children, is unreasonable age discrimination, in violation of the Medicaid statute and regulations. Finally, Plaintiffs argue that the denial of MCMDS on the sole basis of age violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.
Defendants argue that neither the federal Medicaid Act, nor the Fourteenth Amendment, requires them to provide MCMDS and associated repairs to the Plaintiffs. Defendants contend that the State of Florida need not cover the costs of customized/motorized mobility devices for its adult Medicaid population because it is not required to fund every medically necessary item of Durable Medical Equipment ("DME"). Defendants further argue that a rational basis exists for covering MCMDS for individuals under 21, while denying MCMDS to adults.
C. The Facts
Plaintiffs are Medicaid recipients in need of customized/motorized mobility devices as prescribed by their treating provider as medically necessary.
* * * * *
III. LEGAL ANALYSIS
A. The Federal Medicaid Act: 42 U.S.C. ? 1396
* * * * *
1. Introduction
The Medicaid Act, Title XIX of the Social Security Act, 42 U.S.C. ? 1396, is a cooperative federal-state program designed to allow states to receive matching funds from the federal government to finance necessary medical services to qualified low-income individuals. Tallahassee Memorial Center v. Cook, 109 F.3d 693, 697 (11th Cir.1997) (citing Schweiker v. Gray Panthers, 453 U.S. 34, 36, 101 S.Ct. 2633, 69 L.Ed.2d 460 (1981)). The purpose of the federal Medicaid Act is to enable each State to furnish:
(1) medical assistance on behalf of families with dependent children and of aged,
blind, or disabled individuals, whose income and resources are insufficient to meet the
costs of necessary medical services, and (2) rehabilitation and other services to help
such families and individuals attain or retain capacity for independence or self-care.
42 U.S.C. ? 1396 (emphasis added).
The State of Florida (the "State") has exercised its option to participate in the Medicaid program. Therefore, the State's Medicaid program is subject to the authority of the federal Medicaid Act. Harris, 448 U.S. at 301, 100 S.Ct. 2671; 42 U.S.C. ? 1396.
2. Home Health Care and Durable Medical Equipment
[1] The Medicaid Act requires participating states to provide certain mandatory services to its Medicaid recipients. 42 U.S.C. ? 1396a(a)(10)(A); see also Tallahassee Memorial, 109 F.3d at 698. The Medicaid Act also lists optional medical services that states may elect to provide. With respect to the optional services, once a state elects to provide a service, that service becomes part of the state Medicaid plan and is subject to the requirements of federal law. Tallahassee Memorial, 109 F.3d at 698.
The primary coverage category utilized to cover "durable medical equipment" ("DME") is home health care services pursuant to 42 U.S.C. ? 1396d(a)(7). Home health care includes DME. 42 C.F.R. ? 440.70(b)(3). Home health care services are generally a mandatory service for the categorically needy, and if the State so elects, the services are required for medically needy individuals who would otherwise be institutionalized in a nursing home. See 42 U.S.C. ?? 1396a(a)(10)(D) and 1396a(a)(10)(C)(iv).
The issue presented here is not whether the Medicaid Act requires participating states to provide motorized or customized wheelchairs to eligible Medicaid recipients. This is so because Florida has voluntarily elected to provide wheelchairs as part of its "home health care," an optional service under the Medicaid Act. Fla.Stat. ? 409.905(4) ("[t]he agency shall pay for ... durable medical equipment necessary to assist a recipient living at home ..."). Wheelchairs are among the DME that the state provides to its recipients. See *1260 DME/Medical Supply Services Coverage and Limitations Handbook ("DME coverage handbook"), 2-39 (May 1996). Thus, the question presented is whether the State's limitation of $582 on the coverage of wheelchairs provided to Plaintiffs is contrary to the purposes of the Medicaid statute.
3. Sufficiency of Medicaid Service
[2] Once the state elects to provide a service under its Medicaid plan, the service offered "must be sufficient in amount, duration and scope to reasonably achieve its purpose." 42 C.F.R. ? 440.230(b). A State may not "arbitrarily deny or reduce the amount, duration or scope of a required service ... solely because of the diagnosis, type of illness, or condition." 42 C.F.R. ? 440.230(c). The Medicaid Act gives the state discretion to determine the proper mix of amount, scope, and duration limitations on coverage as long as the care and services are provided in the "best interest of the recipients." Alexander v. Choate, 469 U.S. 287, 303, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (quoting 42 U.S.C. ? 1396a(a)(19)).
On September 4, 1998, the Health Care Financing Administration (HCFA) sent a letter to all state Medicaid directors setting out new interpretive guidance to clarify the Secretary's position on coverage determinations. The letter states that any State "may develop a list of pre-approved items of [medical equipment] as an administrative convenience because such a list eliminates the need to administer an extensive application process for each [medical equipment] request submitted. However, '[a medical equipment] policy that provides no reasonable and meaningful procedure for requesting items that do not appear on a State's pre-approved list[ ] is inconsistent with ... Federal law.' "
[3] In order to comply with federal Medicaid requirements, a State must: (1) provide a timely response and employ reasonable and specific criteria by which an individual item of medical equipment will be judged for coverage; (2) make its process and criteria, as well as its list of pre-approved items, available to beneficiaries and the public; and (3) inform beneficiaries of their right to a fair hearing to determine whether an adverse decision is contrary to federal law.
[4] Florida has failed to provide a reasonable and meaningful procedure for requesting items that do not appear on the State's pre-approved list. Florida has not employed reasonable and specific criteria by which motorized or customized mobility devices will be judged for coverage. Florida has essentially denied coverage to persons with severe mobility impairments based on age rather than medical necessity.
The state's coverage limitations on a service must also comport with the "fundamental concept of reasonableness." Hunter v. Chiles, 944 F.Supp. 914, 920 (S.D.Fla.1996); see 42 C.F.R. ? 440.230(b). The general purpose of the Federal Medicaid Statute is to help individuals "attain or retain capacity for independence or self-care." 42 U.S.C. ? 1396. The specific purpose for providing DME, a home health care service, is "to promote, maintain or restore health and minimize the effects of illness, disability or a disabling condition." DME coverage handbook, 1-1 (July 1997). To this end, the state has chosen to provide "wheelchairs" to its Medicaid recipients. According to the state's DME coverage handbook,
[a] wheelchair is a chair mounted on wheels used to transport a non- ambulatory individual ... Medicaid may reimburse for a wheelchair when the recipient is non-ambulatory, has severely limited mobility or it is necessary to accommodate the recipient's physical characteristics.
DME coverage handbook, 2-39 (May 1996) (emphasis added).
In Alexander v. Choate, the Supreme Court upheld a 14-day limitation on in- patient coverage even though the patient needed a longer stay because "Medicaid *1261 programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her needs." Id. at 303, 105 S.Ct. 712. This case is distinguishable from Alexander v. Choate, however, because when the State provides a manual wheelchair to a person with a severe mobility impairment it falls far short of imprecise tailoring. At best it is arbitrary.
The State provides wheelchairs to an eligible Medicaid recipient "when the recipient is non-ambulatory, has severely limited mobility or it is necessary to accommodate the recipient's physical characteristics." DME coverage handbook, 2-39 (May 1996). Yet, the manual wheelchair that the State provides is insufficient to "minimize the effects of" the Plaintiffs' mobility impairment. Thus, the State's absolute limitation on coverage for wheelchairs runs counter to its articulated purpose for including wheelchairs under its DME coverage: to minimize the effects of a mobility impairment. [FN2] The limitation on coverage also runs counter to the Federal Medicaid purpose of helping individuals "attain or retain capacity for independence or self- care." 42 U.S.C. ? 1396. Accordingly, this Court finds that the $582 cap on wheelchairs for adults diagnosed as having a severe mobility impairment is insufficient to reasonably achieve the State's own purpose for providing wheelchairs to such individuals.
FN2. The Court disagrees with the Defendants' contention that "all wheelchairs effectuate mobility." Defendants' Motion for Summary Judgment at 8. As the facts of the present case reveal, individuals with severe mobility impairments are unable to propel a standard wheelchair. Under these circumstances, standard wheelchairs do not effectuate mobility.
4. Denial of Medicaid Funding on the Basis of Age
The DME coverage handbook explains the types of wheelchairs it covers under the heading, "Categories of Wheelchairs," as follows:
Medicaid may reimburse for a wheelchair when the recipient is conf2002ined to a bed or chair. Reimbursement may be made for the following:
. a narrow wheelchair required due to narrow doorways in the home;
. a lightweight wheelchair required when the recipient cannot propel a standard wheelchair;
. a motorized wheelchair required when medical needs cannot be met by a less costly alternative;
. other models if the features and accessories are medically necessary; and
. a customized wheelchair that is specially constructed and not available from manufacturers.
DME coverage handbook, 2-39 (May 1996).
Defendants contend that excluding persons from coverage solely because they are over 21 is reasonable because the Medicaid statute itself makes categories of services mandatory for children that are optional for adults. Defendants contend that the Early Periodic Screening, Diagnostic and Treatment ("EPSDT") program authorizes the provision of services to EPSDT clients that are not provided to other Medicaid recipients. 42 U.S.C. ? 1396d(a)(4)(B); 42 C.F.R. ?? 441.50-62. However, the special services provided to EPSDT clients under the age of 21 are services directly related to their status as children. These services include immunizations, periodic dental checkups, eye glasses, child health maintenance, and early diagnosis.
Under the State's EPSDT program the State provides MCMDS, described in the DME coverage handbook, to individuals age 21 and under. Unless a medically eligible individual meets the state's age requirement (under age 21), that individual will be denied medically necessary MCMDS, as detailed in the state's DME coverage handbook.
This Court has previously held that "Medicaid funding cannot be denied on the *1262 basis of age." Hunter, 944 F.Supp. at 920; see also Salgado v. Kirschner, 179 Ariz. 301, 878 P.2d 659, 660 (1994). In Hunter v. Chiles, the Court disagreed with the argument that the Defendants make here: that the state may choose to deny optional services to eligible individuals based entirely on age. Id. The Court in Hunter held that Augmentative Communication Devices and Services ("ACDS"), which were provided to Medicaid recipients under age 21 under the EPSDT program, could not be denied to the Plaintiffs, who had severe speech disabilities, solely on the basis of age. 944 F.Supp. at 920.
In Salgado, an Arizona Medicaid program participant was denied life sustaining liver transplant coverage because she was over 21. Id. 878 P.2d at 660. The state argued that it could choose to provide transplants exclusively to children based on the EPSDT program. The Supreme Court of Arizona found that it was unreasonable to allocate treatment within a service category solely on the basis of age.
[5] This Court finds, that once Florida chose to provide wheelchairs to eligible Medicaid recipients, Florida may not arbitrarily or unreasonably deny motorized wheelchairs to Plaintiffs entirely on the basis of age. Eleventh Circuit precedent makes clear that the state Medicaid plan must meet the test of reasonableness. In Rush v. Parham, 625 F.2d 1150 (5th Cir.1980), the court held that a state could adopt a definition of medical necessity that places reasonable limits on a physician's discretion, and therefore, could ban reimbursement for experimental forms of treatment. Id. at 1154-55.
However, the Supreme Court has stated that although the states have broad discretion to adopt standards, the standards must be reasonable and consistent with the objectives of the Act. Beal v. Doe, 432 U.S. 438, 444, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977). The Court finds that the State of Florida's absolute limitation of $582 on the coverage of wheelchairs provided to Plaintiffs who have severe mobility impairments entirely on the basis of age fails the reasonableness test and is contrary to the purposes of the Medicaid statute.
This Court holds that once the State voluntarily elects to provide wheelchairs to eligible Medicaid recipients, it must provide wheelchairs that are sufficient in amount, duration and scope to achieve their purpose. Providing manual wheelchairs to eligible Medicaid recipients with severe mobility impairments is not sufficient to achieve the State's purpose. It follows naturally that the State is then required to provide the associated repairs (consistent with the DME coverage handbook) necessary to maintain the motorized wheelchairs in dependable working order. DME coverage handbook, 2-9 (July 1997).
In addition, this Court holds that the State's limitation of coverage for the parties in this action seeking customized or motorized wheelchairs with severe mobility impairments is not sufficient in amount, duration and scope to achieve their purpose.
CONCLUSION
* *
*
*
*
ORDERED AND ADJUDGED that the State of Florida is hereby ENJOINED *1263 from using the list of covered items as the exclusive determinant of Medicaid coverage for DME.
57 F.Supp.2d 736, 63 Soc.Sec.Rep.Ser. 550
John SMITH, Plaintiff,
v.
Jessie K. RASMUSSEN, in her Official Capacity as Director of the
Iowa
Department of Human Services, Defendant.
No. C97-3055-MWB.
United States District Court,
N.D. Iowa,
Central Division.
July 14, 1999.
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION AND TRIAL ON THE MERITS
BENNETT, District Judge.
Resolution of this lawsuit is not as simple as deciding whether the plaintiff should be left "betwixt and between" genders as he seeks completion of female-to-male sex reassignment surgery at the expense of the Iowa Medicaid program. Probably nobody familiar with the record in this case would disagree with the observation of plaintiff's treating psychiatrist that being "left in the middle" would be "just a nightmare for anyone." However, the ultimate question before the court is not whether the plaintiff's sex reassignment should be completed, but whether Medicaid should have to pay for it. Before even reaching the merits of that multifaceted question, the court must also determine whether this litigation, like the plaintiff, is caught "betwixt and between," this time somewhere between plaintiff's concerns and a justiciable Article III "case or controversy."
*740 I. INTRODUCTION
Plaintiff "John Smith" [FN1] filed this action on May 19, 1997, seeking reimbursement under the Iowa Medicaid program for medically necessary surgical procedures, specifically, female-to-male sex reassignment surgery, as treatment for his gender identity disorder. He [FN2] originally asserted that denial of Medicaid payments for his sex reassignment surgery was in violation of both Medicaid statutes and regulations and the due process clause of the Fourteenth Amendment to the United States Constitution. He has since withdrawn his due process claim, and at trial asserted only his claim that denial of payments for his sex reassignment surgery was in violation of the Medicaid statutes and regulations. Defendant Jessie K. Rasmussen, [FN3] in her official capacity as the Director of the Iowa Department of Human Services (the Director), [FN4]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WILLIAM T., et al.,
Plaintiffs
CIVIL ACTION NO.
1:95-CV-2901A-JEC
v.
WILLIAM R. TAYLOR, M.D., et al.,
Defendants.
ORDER
This case is presently before the Court on plaintiffs' Motion for Summary Judgment [56], plaintiffs' Motion to Exceed Page Limitation [58], defendants' Cross-Motion for Summary Judgment [59], defendants' Motion to Exceed Page Limitation [61], plaintiffs' Motion to Enforce the February 5, 1998 Stipulation and Order [62], Lawrence "Kirby" H.'s Motion for Summary Judgment [63], Lawrence "Kirby" H.'s Motion to Intervene [64], plaintiffs' Motion to Exceed Page Limitation [66], defendants' Motion for Authorization to File Reply to Plaintiffs' Reply Memorandum in Support of Their Motion for Summary Judgment [73], and defendants' Motion for Authorization to File a Sur-Reply to Plaintiffs' Reply Memorandum in Support of Their Motion for Intervention[78]. The Court has reviewed the record and the arguments of the parties and, for the reasons set forth below, concludes that plaintiffs' [pages 1-14 deleted, pp. 20-25, below, are pp. 15-21 of slip opinion]
F. Supp. 914, 916 (S.D. Fla. 1996) (holding that Ex parte Young exception applied to plaintiffs' suit for prospective injunctive relief against state official who denied Medicaid coverage to plaintiffs who had requested ACDs to allow them to communicate verbally). Defendants' motion for summary judgment as to this ground is DENIED.
C. Does GDMA have discretion to deny coverage for ACDs?
Defendants' final contention is that because the service categories under which plaintiffs' make their claim-i.e., home health services, prosthetic devices, and speech-language pathology services-are not required services but rather optional services, ___________________
517 U.S. at 75-76. The Court held that "where Congress has prescribed a detailed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casting aside those limitations and permitting an action against a state officer based upon Ex parte Young." Id. At 74.
Defendants have not, however, been able to point to any case where a Court refused to allow a plaintiff to bring suit for prospective injunctive relief under the Medicaid act pursuant to the Ex parte Young doctrine. Indeed, plaintiffs correctly cite an Eleventh Circuit decision that specifically rejected a state's Eleventh Amendment defense to a claim to enforce the Medicaid provisions through the issuance of prospective injunctive relief. See Doe v. Chiles, 136 F.3d 709, 719-21 (11th cir. 1998). In addition, plaintiffs have cited several cases where other courts have specifically permitted plaintiffs to sue to redress a state official's policy to grant Medicaid coverage to a class of individuals. See Fred C. v. Texas Health & Human Servs. Com'n, 988 F.Supp. 1032 (W.D. Tex. 1997), aff'd, 167 F.3d 537 (5th Cir. 1998) and Hunter v. Chiles, 944 F.Supp. 914, 916 (S.D. Fla. 1996). In light of this showing, the court is unpersuaded by defendants' argument and finds that the Ex parte Young exception should apply to plaintiff's claims.
they have ample discretion to determine the amount, scope, and duration of any coverage that they offer for ACDs and thus can categorically limit the ACD services they provide, whenever they deem it desirable to do so.(1) (Defs.' Cross-Mot. for Summ. J. [59] at 19-20.) To support this contention, defendants cite several federal court decisions. Defendants do not, however, offer more than a cursory discussion of each of the cited cases-typically quoting a particular choice phrase from each case-and they do not discuss the particular claims made in those cases. (Defs.' Cross-Mot. for Summ. J. [59] at 21-24.) Moreover, these cases do not come close to the holding for which defendants cite them: to wit, that a state may make a categorical determination to exclude a particular type of treatment.(2)
In addition, plaintiffs carefully and persuasively distinguish each of the cases cited by defendants to support their contention that they have the authority to limit the types of optional services rendered. (Pls.' Reply Br. [65] at 24-30.) Plaintiffs have succeeded in demonstrating that each of the cases cited by defendants in their brief either do not address the type of categorical denial involved in the instant case or deal with providers who are seeking reimbursement from the state.
Moreover, plaintiffs contend that although states can limit the definition of medically necessary to exclude certain treatments that are, inter alia, experimental in nature, states are not permitted to categorically exclude specific types of treatment under their broad discretion to determine the amount, duration, and scope of services provided. (Pls.' Br. in Supp. of Mot. for Summ. J. [56] at 13-18). Plaintiffs cite numerous cases to support this contention.(3) See e.g. Rush v. Parham, 625 F.2d 1150, 1157 n.12 (5th Cir. 1980). In Rush,(4) a panel of the former Fifth Circuit held that under the Medicaid statutes, Georgia could define medical necessity "in a way tailored to the requirements of its own Medicaid program," thereby limiting the scope of its coverage. Id. at 1155. Pursuant to this holding, the state could tailor its definition of medically necessary to exclude experimental treatment, such as the sex reassignment surgery at issue in that case. Id. at 1156. The panel cautioned, however, that Georgia could not adopt a policy that categorically denied coverage for sex reassignment surgery. Id. at 1157 n.12.
Finally, plaintiffs present a policy letter dated September 4, 1998, from Sally K. Richardson, Director of Health Care Financing Administration (hereinafter "HCFA") Center for Medicaid and State Operations, supporting their position. In this letter, Ms. Richardson writes:
As you know, the mandatory home health services benefit(5) under the Medicaid program includes coverage of medical supplies, equipment, and appliances suitable for use in the home (42 C.F.R. § 440.70(b)(3)). A state may establish reasonable standards, consistent with the objectives of the Medicaid statute, for determining the extent of such coverage (42 U.S.C. § 1396(a)(17)) based on such criteria as medical necessity or utilization control (42 C.F.R. § 440.230(d)). In doing so, a State must ensure that the amount, duration, and scope of coverage are reasonably sufficient to achieve the purpose of the service (42 C.F.R. § 440.230(b)). Furthermore, a State may not impose arbitrary limitations on mandatory services, such as home health services, based solely on diagnosis, type of illness, or condition (42 C.F.R. § 440.230(c)).
An ME [medical equipment] policy that provides no reasonable and meaningful procedure for requesting items that do not appear on a State's pre-approved list, is inconsistent with the federal law discussed above. In evaluating a request for an item of ME, a State may not use a "Medicaid population as a whole" test, which requires a beneficiary to demonstrate that, absent coverage of the item requested, the needs of "most" Medicaid recipients will not be met. This test, in the ME context, establishes a standard that virtually no individual item of ME can meet. Requiring a beneficiary to meet this test as a criterion for determining whether an item is covered, therefore, fails to provide a meaningful opportunity for seeking modifications of or exceptions to a State's pre-approved list. Finally, the process for seeking modifications or exceptions must be made available to all beneficiaries and may not be limited to sub-classes of the population (e.g., beneficiaries under the age of 21).
(Pls.' App. of Unpublished Mats. [56] at Ex. 7 ("HCFA Policy Letter") at 1 (footnote added).) This letter fully supports plaintiffs' contention that states may not categorically deny coverage for a particular service. In this letter, Ms. Richardson explains that a state may not maintain an exclusive pre-approved list of medical equipment to make coverage determinations. Rather, the state must have process whereby an applicant may seek coverage of an item not specifically listed.
A well-established and communicated administrative practice, agency transmittals promulgated by HCFA are apparently entitled to the same deference as HCFA's formal regulations.(6) See Falker v. Glynn Co., 197 F.3d 1341, 1350 (11th Cir. 1999); Georgia Dept. of Med. Assist. v. Shalala, 8 F.3d 1565, 1571 n.8 (11th Cir. 1994).
Assuming that this Court must show some deference to HCFA's reasonable interpretation, as reflected in the above letter, however, the Court further notes that the letter reflects a reasonable interpretation of the law and that it forecloses defendant's contention. See Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1983); see also Planned Parenthood Affiliates of Mich., 73 F.3d at 638 (according great deference to letter from Ms. Richardson to all state Medicaid directors under Good Samaritan Hospital). Accordingly, the Court DENIES defendants' motion for summary judgment on this ground, as well.
IV. Plaintiffs' Motion for Summary Judgment
In their motion for summary judgment, plaintiffs contend that defendants are violating three statutory and one regulatory provision of Medicaid. As an initial matter, the Court must determine whether plaintiffs have validly stated a § 1983 claim--that is, have plaintiffs asserted violations of their federal rights. Next, the Court must determine whether ACDs fit into the three optional service classifications that Georgia has agreed to cover.
A. Have plaintiffs asserted violations of federal rights?
Until the supreme Court's 1980 decision in Maine v. Thiboutot, 448 U.S. 1 (1980), § 1983 was used primarily to secure [pp. 22-44 of slip opinion deleted]
197 F.3d 611, 65 Soc.Sec.Rep.Ser. 152, 9 A.D. Cases 1469, 16 NDLR P 159
Juana RODRIGUEZ, et al., individually and on the behalf of all
others similarly situated, Plaintiffs-Appellees,
v.
CITY OF NEW YORK; et al., Defendants-Appellants.
Docket Nos. 99-7572, 99-7604, 99-7586, 99-7618, 99-7588.
United States Court of Appeals,
Second Circuit.
Argued: July 12, 1999
Decided: Oct. 06, 1999
at 617 :
b) 42 C.F.R. ? 440.230(b), (c)
Appellees next contend that appellants' plan violated two regulations promulgated pursuant to the Medicaid Act, 42 C.F.R. ? 440.230(b) & (c). Title 42 C.F.R. ? 440.230 reads in relevant part as follows:
(b) Each service must be sufficient in amount, duration, and scope to reasonably achieve its purpose.
(c) The Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under ?? 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition.
Appellants contend that these regulations are not enforceable by private actions under Section 1983 but, even if they are, the regulations have not been violated. Assuming arguendo that a claim based upon these regulations is cognizable under Section 1983, cf. Concourse Rehabilitation & Nursing Ctr. Inc. v. Wing, 150 F.3d 185, 188 (2d Cir.1998) (assuming without deciding that Section 1396a(a)(1) creates federal rights enforceable by private parties under Section 1983), we see no conf2002lict with these regulations.
Title 42 C.F.R. ? 440.230(b) looks to the purpose of the particular service provided. Appellees argue that the purpose of the personal care services is to enable recipients to reside in their homes, see Rodriguez, 44 F.Supp.2d at 614, and, their argument goes, because safety monitoring enables appellees to remain at home, it must be provided. This analysis is, however, at the incorrect level of generality. Instead of examining the particular need addressed by a particular service, it focuses on the presumed purpose of an entire package of personal care services. This approach is contrary to the text of the regulation and to the purpose of the Medicaid Act.
The regulation looks to the purpose of "[e]ach service" provided, see 42 C.F.R. ? 440.230(b), and where a state like New York provides numerous different services, each is to be examined independently. [FN4] Moreover, interpreting the regulation to require examination of the overall purpose of a broad category of optional services provided instead of the purpose of a particular benefit would undermine the discretion that the Medicaid Act affords states. See Beal, 432 U.S. at 444, 97 S.Ct. 2366. Under appellees' reading of the regulation, for example, a state that provided one benefit that allowed some patients to remain at home would be required to provide virtually all benefits needed to enable all Medicaid recipients to remain at home. Thus, even if safety monitoring is essential to enable appellees to reside safely in their homes, 42 C.F.R. ? 440.230(b) is not violated by New York's failure to provide it.
FN4. We note that courts construing this regulation have viewed as the relevant question the propriety of the manner in which a particular benefit was provided, not whether a new benefit was mandated. For example, in Charleston Memorial Hospital v. Conrad, 693 F.2d 324, 330 (4th Cir.1982), the Fourth Circuit found no violation of the Medicaid Act or 42 C.F.R. ? 440.230(b) when South Carolina reduced the number of annual hospital visits it would reimburse. See also Curtis v. Taylor, 625 F.2d 645, 650-53 (5th Cir.) (finding limitation on physician visits to three per month did not violate regulation), modified by 648 F.2d 946 (5th Cir.1980).
Appellees' claim under subsection (c) also suffers from a fatal problem. The regulation states that "[t]he Medicaid agency may not arbitrarily deny or reduce the amount, duration, or scope of a required service under ?? 440.210 and 440.220 to an otherwise eligible recipient solely because of the diagnosis, type of illness, or condition." 42 C.F.R. ? 440.230(c) (emphasis added). Personal care services are not a required service under Section 440.210 or Section 440.220. [FN5] *618 Thus, this provision gives no support to appellees' claim.
FN5. Section 440.210 does require states to provide the home health services described in Section 440.70, but those required services do not include the type of personal care services at issue here.
If Medicaid attempts to exclude treatments entirely:
1. Look to 9/4/98 SMD letter; look for cases that defer to/apply letter
2. Look to cases that have given deference to similar federal policy letters on other topics
3. Look to frequency of coverage of same type of treatment by other Medicaid programs, insurers and Medicare
4. Look to state definition of benefits category, which may be in regulation and/or supplier manual; where possible, argue exclusion is inconsistent with state purpose for including benefits category in state plan, i.e., providing this category of care to Medicaid recipients
5. Look to federal description of benefits category; argue federal standards and intent controls ?scope? of Medicaid covered services and state must comply with federal standards
6. Look to state basis for exclusion: is it based on ?science? or just ?policy? if a ?science? basis is advanced, check the science and check the individuals the state is relying on: do they have any experience providing the disputed treatment to their own patients? If not, challenge their qualifications even to supply opinions
7. Look to cases interpreting the ?reasonable standards? provision in the statute and ?amount, duration and scope? rule: none ever authorizes total exclusion of a specific type of treatment
If Medicaid attempts to deny or limit access
on the basis of age, condition or cost:
1. Age and conditions limits or exclusions must be based on science. Check the state's evidence and the experts who interpreted the science: does the state rely on articles that support limits or exclusions as the state has proposed: i.e., do the articles show the treatment to not be effective in particular circumstances? As to the "experts," have these individuals provided the disputed treatment to their patients? If not, challenge their qualifications even to supply opinions.
2. Look to scope of coverage elsewhere: do similar limitations exist? What are they based on? If the limitations or exclusions proposed by the state are not common practice, look closely at when more broad coverage was adopted elsewhere.
3. With regard to reimbursement/expenditure limits: look at whether the state reimbursement is at a level where vendors/providers refuse to serve Medicaid recipients.
4. Look carefully at whether the reimbursement rate issue is tied to a specific item, or a broad category of items. E.g., is the state using its ability to set reimbursement levels to effect an intent to not cover a specific type or category of treatment?
5. Look at comparable programs: How does the state?s reimbursement level differ from that provided when individuals have their health care costs covered by insurance and Medicare? How does this state's reimbursement level compare to that of other Medicaid programs? What are the reimbursement practices of other Medicaid programs toward the same item?
If Medicaid attempts to use "definitions" to deny or limit access:
Examples:
item is not DME, but is an environmental modification, therefore available only through one or more waivers
item is not DME, but is a prosthetic device; or is not DME and is a prosthetic device
item is not on the state's fee schedule; can be covered by pursuing "exceptions" procedure
definition requires "something" that item cannot meet: e.g., a specific type of warranty, specific type of manufacture, e.g., a dedicated AAC device, or in-state vendor
1. Defendants make a similar, but more explicitly bold, contention that simply because the services at issue in this case fall into the optional services, as opposed to the required services, the state is permitted to deviate from the federal regulations regarding the provision of that service whenever the State wishes. The Eleventh Circuit has recently reiterated that "when a state elects to provide an optional service, that service becomes part of the state Medicaid plan and is subject to requirements of federal law." Doe v. Chiles, 136 F.3d 709, 713 (11th Cir. 1998) (quoting Tallahassee Memorial Reg. Ctr. V. Cook, 109 F.3d 693, 698 (11th Cir. 1997) (per curium).
2. See Alexander v. Choate, 469 U.S. 287, 309 (1985) (finding that Tennessee's limitations on number of days of hospital coverage does not "deny the handicapped access to or exclude them from the particular package of Medicaid services Tennessee has chosen to provide"); Ellis v. Patterson, 859 F.2d 52, 54-55 (8th Cir. 1988) (finding that, in general, states may not automatically deny necessary medical service to Medicaid recipient but that organ transplants may be properly excluded from coverage pursuant to special statute specifically addressing organ transplant coverage); Sandefur v. Cherry, 718 F.2d 682, 684 (5th Cir. 1983) (suit by optometrists challenging Medicaid statute's distinction regarding reimbursement to optometrists as being less than the reimbursement to ophthalmologists); Charleston Memorial Hosp. V. Conrad, 693 F.2d 324, 329 (4th Cir. 1982) (suit by hospital challenging reduction of number of covered days permitted per year); and Curtis v. Taylor, 625 F.2d 645, 652 (5th Cir. 1980) (finding that Florida could legally limit the number of doctor's visits per month as this restriction did not "single out for unique treatment" a particular medical treatment and pursuant to Florida's plan "[a]ll medical conditions are treated equally"). See also Warr v. Horsley, 705 F. Supp. 621 (M.D. Ala. 1989); Virginia Hosp. Assoc. v. Kenley, 427 F. Supp. 781 (E.D. Va. 1977); and D.C. Podiatry Society v. District of Columbia, 407 F. Supp. 1259 (D.D.C. 1975).
3. In general, plaintiffs cite cases dealing with states' attempts to refuse or limit the funding of abortions. Courts have consistently held that states must determine that abortions should not be funded due to the fact that they are not medically necessary on a case-by-case basis and cannot categorically deny coverage for all abortions or limit the coverage to only those abortions necessary to save the mother's life. See Planned Parenthood Affiliates of Mich. v. Engler, 73 F.3d 634, 638 (6th Cir. 1996); Hope Med. Group for Women v. Edwards, 63 F.3d 418, 427 (5th Cir. 1995); Elizabeth Blackwell Health Ctr. for Women v. Knoll, 61 F.3d 170 (3d Cir. 1995); Little Rock Family Planning Serv., P.A. v. Dalton, 60 F.3d 497 (8th Cir. 1995); Hern v. Beye, 57 F.3d 906 (10th Cir. 1995); and Preterm, Inc. v. Dukakis, 591 F.2d 121 (1st Cir. 1979).
4. This case is binding on the Court. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th cir. 1981) (en banc) (adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981).
5. As mentioned supra and discussed more thoroughly infra, this class of services is one of the classes of services that plaintiffs contend ACDs fall into.
6. This Court is somewhat skeptical about according a letter the same deference as a regulation. In this Court's experience, letters written by officials in a bureaucracy are sometimes inconsistent with each other and have not undergone the focus of a review and comment process that accompanies the promulgation of a regulations. Chevron's deference toward an administrative agency's interpretation already gives that agency great power in effectively acting as a legislative body; further deferring to the agency's letters interpreting its own regulations arguably expands Chevron beyond its own language and beyond the limits of prudence. Indeed, the Eleventh Circuit has noted that "a rule would be preferable," but has also tempered this observation with a recognition that "the agency is not required to promulgate rules pursuant to statute." Georgia Dept. of Med. Assist. v. Shalala, 8 F.3d 1565, 1571 n.8 (1994). The Eleventh Circuit has further held that this is especially true when "HCFA spoke directly to the states on this question through [a transmittal], which we recognize as administrative practice." Id. Accordingly, the Court believes that it must defer to the transmittal letter in question.