MEDICAID, ASSISTIVE TECHNOLOGY & THE
COURTS
Recent Court Decisions of Relevance to Assistive Technology Advocacy
Prepared By: James R. Sheldon, Jr.
Supervising
Attorney
National
Assistive Technology Advocacy Project
Neighborhood
Legal Services, Inc.
295
Main Street, Room 495
Buffalo,
New York 14203
716-847-0650
ext. 262 (0227 fax)
jsheldon@nls.org * www.nls.org
The following is a list of federal and state court decisions (and one recently filed case) from the 2001 - 2003 period. The focus is on decisions that either deal with assistive technology (AT) or deal with an issue of pivotal importance to AT advocacy (e.g., cases dealing with other categories of service). This list will not attempt to cover the many Medicaid court decisions that deal with other issues, even though they may impact on the ability of attorneys to access the courts to enforce Medicaid provisions. Many of those decisions are summarized in the handouts of Jane Perkins.
The decisions will be listed under two categories: federal court decisions and state court decisions. Within each category, we list the decisions in reverse chronological order, with the most recent decisions listed first.
Federal Court Decisions:
S.D. v. Hood, 2002 WL 31741240 (E.D.La. 12/5/02). Plaintiff is a 16 year old with spina bifida who brought an action under 42 U.S.C. § 1983 to assert his federal statutory right to "medically necessary" services (incontinence underwear) pursuant to EPSDT requirements. The district court found that the state's policy of refusing to provide incontinence underwear for Medicaid beneficiaries for whom such "medical assistance" has been found medically necessary by EPSDT screenings violates the federal Medicaid Act. The court compared this medical assistance to the plaintiff's wheelchair, which allows him to move about his home, to travel, and to engage in age appropriate activities.
Pragano v. Wilson-Coker (case is pending)(D.Conn., filed in 2002). The New Haven Legal Assistance Association (Sheldon V. Toubman, Esq.), in collaboration with Connecticut Legal Services (Kevin Brophy, Esq., Mary Jean Schierberl, Esq.), has filed a class action, Pragano, et al. v. Wilson-Coker, in the U.S. District Court for Connecticut. The lawsuit challenges a policy and practice which results in the categorical denial of many items of durable medical equipment (DME). Plaintiffs contend that if an item of DME is not on the agency's pre-approved list, the practice is to deny coverage if the requested DME is excluded for coverage under Medicare. They contend that in making this determination the agency relies exclusively on Medicare's Durable Medical Equipment Regional Carrier (DMERC) Manual, rejecting claims that are specifically excluded in the DMERC manual for Medicare coverage. Under this approach to decision making, the agency denied the individual plaintiffs' claims for a low air loss mattress, a stair glide lift system, and an environmental control unit.
The plaintiffs claim, among other things, that this use of Medicare standards to determine Medicaid coverage for DME: violates the Medicaid Act's reasonable standards requirement [see 42 U.S.C. § 1396a(a)(17)(A); 42 C.F.R. § 440.230(b)]; denies recipients a reasonable and meaningful opportunity to obtain medically necessary DME that is not on the agency's pre-approved list [citing the well-known CMS policy guidance of September 4, 1998]; denies payment for items of DME necessary for recipients to attain and maintain independence and self-care within the Medicaid Act's goals [see 42 U.S.C. § 1396]; and illegally limits the scope of coverage based on the recipients' specific medical conditions [see 42 C.F.R. §§ 440.210, 440.220].
NOTE: This case involves the same state and same attorneys who litigated the DeSario v. Thomas case that resulted in the very important CMS policy guidance of September 1998 (located at http://cms.hhs.gov/states/letters/smd90498.asp). The complaint and preliminary injunction brief from this case are available from the National AT Advocacy Project.
State Court Decisions:
Cushion v. Department of PATH, 807 A.2d 425 (S.Ct. Vt. 7/2/02). Vermont's Supreme Court ruled that the state Medicaid agency's exclusion of all coverage for partial dentures was an impermissible limitation of services under the optional dental services provision. 42 U.S.C. § 1396d(a)(10); 42 C.F.R. § 440.100. The program had covered full dentures and oral surgery, but did not cover partial dentures. The state unsuccessfully argued that it had discretion, under federal Medicaid law, to cover the optional dental services category and then limit the scope of services it covered under that category.
The court extensively cited its 1997 decision in Brisson v. Dep't of Social Welfare, 167 Vt. 148, 702 A.2d 405 (1997)(refusal to cover a closed circuit television or CCTV, under optional vision services category, was held impermissible). The court held that the state's pre-1997 limitation on vision services was an impermissible limitation on the amount, duration and scope of that service category because the state failed to provide for those in greatest need of that service. 702 A.2d at 408; 42 C.F.R. § 440.230(b). Similarly, the court in Cushion held that "the Department's exclusion of partial dentures fails to provide service to those in the greatest need." 807 A.2d at 428, citing White v. Beal, 555 F.2d 1146, 1151 (3d Cir. 1977).
Blue v. Bonta, 121 Cal.Rptr.2d 483 (Cal. App. 1st Dist. 6/26/02). Court ruled that the state's Medicaid agency cannot, by regulation, specifically exclude stairway chair lifts (sometimes referred to as stair glides) from the scope of coverage under Medi-Cal's durable medical equipment category. The plaintiff was a woman with severe physical disabilities who had difficulty going up and down stairs to use the home's only bathroom. The court pointed out that Ms. Blue had once fallen while attempting to climb the stairs which forced her to remain on the upper floor for days, unable to leave the home in the event of a daytime emergency when her daughter was not working.
The decision turned on whether the device in question met California's definition of durable medicaid equipment (DME), with the state arguing that the chair lift does not serve a "medical" purpose. In finding that this device meets California's DME definition (very similar to the Medicare definition), the decision contains some good language that attorneys may find useful in pending or future cases (e.g., "a stairway chair lift alleviates a medical condition such as osteoarthritis by restoring the ability to move about the different levels of a home, where this is medically necessary for a patient."; "As in the case of a wheelchair, a stairway chair lift restores mobility lost as a result of a medical condition or disability, enabling the patient to reside at home rather than in an institution."; "the evil to be remedied by the relevant Medicaid and Medical statutes is the denial of necessary medical equipment for use in home health care, leading to unnecessary disability or institutionalization.").
Surprisingly, the court did not address the issue of this regulation acting as an exclusive list.
Sorrentino v. Novello, 744 N.Y.S.2d 592 (N.Y.A.D. 4th Dept. 6/14/02). This decision awards Medicaid funding for an LCM standing power wheelchair. Although the decision is very brief, it does recite evidence and testimony that supported this man's need for the standing device to promote circulation, bone density, bladder and bowel function, prevent pressure sores, prevent loss of muscle mass and muscle atrophy.
T.L. v. Colorado Department of Health Care Policy and Finance, 42 P.3d 63 (Colo. App. 2001), rehearing denied (1/17/02). Colorado appellate court declared illegal the state Medicaid agency's use of a list of items that cannot be approved as durable medical equipment (DME). This decision relies heavily on the September 4, 1998 letter from the federal Health Care Financing Administration (HCFA)(now the Centers for Medicare and Medicaid Services or CMS), which stated that pre-approved DME lists are only allowed for administrative convenience and a state's policy must allow for a "reasonable and meaningful procedure for requesting items that do not appear on a State's pre-approved list." The HCFA letter noted that a list that does not allow for that procedure for obtaining items not on the list is inconsistent with 42 U.S.C. § 1396a(a)(17), 42 C.F.R. § 440.230(b), and 42 C.F.R. § 440.230(c).
At issue was a prior approval request (PAR) for a hot tub which was prescribed for therapeutic purposes to treat an arthritic condition which causes constant hip pain. The facts indicated that T.L. was also HIV positive with various fungal skin viruses as a result. The PAR sought approval as a medically necessary item of DME. The state Medicaid agency rejected the PAR, without reaching the issue of medical necessity, based on a state regulation that specifically excluded hot tubs from coverage. The court ruled that, "by expressly excluding home health [i.e., DME] coverage for hot tub or jacuzzi acquisitions under all circumstances and without regard to medical necessity," the state regulation "violates federal law and the objectives of Title XIX [of the Social Security Act] and is therefore invalid." The court then remanded to the administrative law judge to: I) determine whether the hot tub meets the DME definition; ii) determine whether the hot tub is medically necessary for T.L.; iii) determine whether, and at what cost, T.L. could obtain that therapy outside the home (i.e., whether the home-based therapy is the least costly alternative); and iv) determine whether the primary purpose of the hot tub is "to enhance the personal comfort of T.L."
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